ACCESSING AGRICULTURAL BIOTECHNOLOGY

RESEARCH IN LATIN AMERICA:

PRIORITIZING STRATEGIC BIOTECHNOLOGY POLICIES
OVER NOVEL LICENSING TECHNIQUES



ANDREAS KALOGIANNIDES, M.A.

A research essay submitted to
The Faculty of Graduate Studies and Research
in partial fulfillment of
the requirements for the degree of

Master of Arts

The Norman Paterson School of International Affairs

Carleton University
Ottawa, Ontario

August 3
rd
2010

2010, Andreas Kalogiannides































ii

TABLE OF CONTENTS

ABSTRACT ....................................................................................................................... iii
ACKNOWLEDGMENTS .................................................................................................. iv
INTRODUCTION ............................................................................................................... 1
Methodology .................................................................................................................... 6
CHAPTER 1: Issues and Licensing Strategies in Accessing and Transferring Agricultural
Biotechnologies .................................................................................................................. 11
1.1 Standard Licenses .................................................................................................... 21
1.2 Open-Source Licenses ............................................................................................. 28
CHAPTER 2: Biotechnology Policies in Latin America: Innovation Systems in Bolivia
and Brazil ........................................................................................................................... 35
2.1 The Brazilian Biotechnology Innovation Model ..................................................... 40
2.2 The Bolivian Biotechnology Innovation Model ...................................................... 48
CHAPTER 3: Lessons Learned from the Innovation Systems in Brazil and Bolivia........ 58
CONCLUSION .................................................................................................................. 70
REFERENCES .................................................................................................................. 73







iii

ABSTRACT


The problem of limited access to biotechnology research tools as a result of
intellectual property protections is largely illusory and has not been voiced as
a significant obstacle by major Latin American institutions conducting
agricultural biotechnological research. Encouraging innovation in pro-poor
agricultural biotechnology research is not [primarily] a function of novel
licensing strategies. This paper will present a comparative analysis of
biotechnology strategies and innovation models in Brazil and Bolivia to
demonstrate that calls for the widespread adoption of collaborative licensing
strategies, such as standardized and open-source licenses, will not be effective
in encouraging technology transfer unless core, capacity-forming
biotechnology policies are also in place. Innovation and technology transfer
in agricultural biotechnology require strong guidance and strategic policy
formulation from the state.





























iv

ACKNOWLEDGMENTS


I would like to thank my mother, Helen, and my father, Peter, for keeping me
grounded and sane in the times when I felt anything but. Much thanks also to
my supervisors, Professor J ean Daudelin and Professor J eremy de Beer, for
their contributions, guidance and above all their patience. Thanks also to
Susan Finston whose pragmatic outlook and experience helped shape my
views on the subject.


1

INTRODUCTION

The involvement of the private sector in agricultural biotechnology has increased
the role of negotiating, acquiring and managing intellectual property (IP) rights. Public
and private actors conceive of IP in different ways and therefore manage and use
technologies differently: private entities seek to increase shareholder value whereas
public entities seek to produce knowledge in public goods technologies. This divergence
of perspectives influences how public and private actors manage and use intellectual
property rights. No more is this evident than in the development and transfer of
agricultural biotechnology for pro-poor uses. Some commentators have suggested that
the utility of traditional IP management instruments, such as Material Transfer
Agreements (MTA), in encouraging technology transfer for research purposes ought to be
re-evaluated because of their potential to limit public sector access to new research.
Along these lines, it is suggested that novel licensing techniques, including the use of
standard licenses, open-source licenses and patent pools, should be form an integral part
of a pro-active IPR management strategy for countries wishing to increase opportunities
for biotechnology research and development (R&D) and commercialization.
However, issues navigating intellectual property rights are not the main obstacles
impeding innovation in agricultural biotechnologies. Hence, novel licensing methods
might not improve access to research tools as much as theorized by many commentators,
such as J ohn Barton, Sarah Boettinger, Eran Binenbaum and J anet Hope, to name only a
few.
1

1
The futility of open-source licensing models was prominent theme in my meeting with Susan K. Finston,
an expert on technology transfer in agricultural biotechnology and innovation policy. Her two decades of
While accessing patented research tools used in basic research is theoretically an
2



issue for some public sector institutions, evidence suggests that intellectual property
rights are not the main factor inhibiting the progress of most agricultural biotechnology
research; in fact, intellectual property rights are generally not even on the radar-screen of
researchers, scientists and managers working in agricultural biotechnology. Instead, the
process of acquiring patent rights is incidental to other factors that have a significantly
larger influence on the progress of innovation, including the maturity level of the
biotechnology industry, the strength of regional or sub-regional partnerships, the strength
of national agricultural research services and the extent of cooperation between
international agricultural research centers and national research institutes. These factors
are all a function of strategic government policy in the areas of developing scientific
capacity, prioritizing research areas and positioning public sector institutions as
incubators of cutting-edge R&D. As such, re-positioning public sector research upstream
from the private R&D involves a re-evaluation of government agricultural policy.
2
In addition, while it has traditionally been thought that strong intellectual property
rights are the main drivers of innovation, recent studies have confirmed that IP is rarely
the most important factor, no matter how rights are managed.

3

experience has indicated to her that the patent-thicket or anti-commons scenarios described in academic
literature and research do not accurately reflect the real-life issues in technology transfer. Rather, the
biggest obstacles facing the transfer of agricultural biotechnology are the lack of coordinated research
policies, unclear biosafety regulation and lack of adequate incentives for commercialization of new public-
domain research. see Finston, Susan. Meeting with Susan Finston. Vol. Discussed IP rights in agricultural
biotechnology., 2010.
For example, a 2001 study
2
The strategies of the International Financial Institutions, in terms of their assistance to and policy
conditionality for the poorer nations, within which subsistence farmers are especially likely to be found, are
also indirectly responsible for contributing to limited public sector research capacity. see Barton, J ohn.
Nutrition and Technology Transfer Policies. Vol. 6. United Nations Conference on Trade and Development
and the International Centre for Trade and Sustainable Development (UNCTAD-ICTSD Project on IPRs
and Sustainable Development), 2005. [Barton]
3
Krattiger, Anatole F., R. T. Mahoney, "The Role of IP Management in Health and Agricultural
Innovation." Intellectual Property Management in Health and Agricultural Innovation: A Handbook of Best
Practices Mill Street, Oxford, U.K.: MIHR (Centre for the Management of Intellectual Property in Health
3



by the Rockefeller Foundation
4
1. R&D in the public and private sectors
found that there are six components of innovation that
affect the development and availability of new biotechnologies:
2. The ability to manufacture to high standards new health technology
products
3. The existence of national distribution systems in both public and private
sectors
4. The existence of international distribution systems, including the operation
of global funds and trade between countries
5. Systems to manage IP
6. Systems for drug and vaccine regulation to achieve safety and efficacy
5
Intellectual property management is merely one out of the six nodes. The other five
nodes are all dependent on innovation and biotechnology policies, including the extent to
which R&D is encouraged in the public sector and commercialized by the private sector;
the presence of collaborative, decentralized research networks; and the existence of
efficient technology distribution pipelines for public sector innovations to find their way
to the private sector.

The growth in agricultural technology due to agro-industrialization should, in
theory, offer many opportunities for public-private partnerships to generate useable

Research and Development) and PIPPRA (Public Intellectual Property Resource for Agriculture), 2007.
[Role of IP Management]
4
Unfortunately, many of these studies have been in the area of pharmaceutical and health technology.
However, new agricultural technologies are very similar to pharmaceuticals because they are also based in
biotechnology research, and this paper makes the fair assumption that principles affecting innovation in
pharmaceuticals will also work for agriculture.
5
Mahoney, R. T. Building Product Innovation Capacity in Health, Intellectual Property Management in
Health and Agricultural Innovation: A Handbook of Best Practices Mill Street, Oxford, U.K.: MIHR
(Centre for the Management of Intellectual Property in Health Research and Development) and PIPPRA
(Public Intellectual Property Resource for Agriculture), 2007 [Innovation Capacity in Health]
4



biotechnology research that can benefit subsistence farmers,
6
and the policy environment
in which these partnerships mature is the key determinant of how efficiently farmers can
access and use this technology. For example, at the level of basic and applied agricultural
biotechnology research (public sector research is mostly concentrated at the basic and
applied levels), tax incentives, market size, the profitability of small-to-medium
enterprises (SMEs), research capacity, the existence of a functioning legal framework and
national trade policy are all very important in determining which technologies are
developed, transferred and ultimately commercialized.
7
A critical component of a strong biotechnology policy environment is leadership
and strategic planning from the state. Biotechnology R&D is so heavily dependent on
technology and research that agricultural research policies must explicitly prioritize the
role that biotech plays in the economy to create the necessary conditions for innovation;
for example, to become competitive in biotechnology, the state must focus on
strategically developing scientific and technological capacity and policies must facilitate
these developments and investments.

8

6
The Hortex program is a good example of the type of partnerships that are possible given the correct
regulatory and policy framework. The program is a large partnership between a variety of institutions that
helps Bangladeshi farmers export fruits and vegetables to Europe. see World Bank, Rural Development
Sector Unit, South Asia Region, South Asia; Strategy and Action Plan for Development, J uly 11, 2001;
see also Barton supra note 2 at 14
Innovation systems are governed through the
structures and procedures policymakers set to encourage innovation and provide
7
These issues are all specifically recognized by the World Bank in its rural strategy development papers;
the World Bank has also identified a need for significant increases in technological development and
research capacity. see From Action to Impact: Africa Regions Rural Strategy. World Bank, Rural
Development Sector Unit, 2002. [Action to Impact]; seealso Barton supra note 2 at 18. Moreover, it is
also particularly important that the situation of the resource-poor farmer should be taken into account to
ensure that the benefits of modern biotechnologies reach small farmers. The majority of farmers in some
Latin American countries are classified as resource-poor. see Roca, W. "Agricultural Applications of
Biotechnology and the Potential for Biodiversity Valorization in Latin America and the Caribbean."
AgBioForum 8.2. [Roca]
8
see Krattiger, Anatole F. "Public-Private Partnerships for Efficient Property Biotech Management and
Transfer, and Increased Private Sector Investments." IP Strategy Today 4 (2002). at 5 [Krattiger]
5



incentives to innovating agents and govern the interactions among them. This ultimately
determines the efficiency of technology transfer.
9
It is often the case that the technology
exists, but there are inadequate information channels and innovation policies to absorb
and use the technology:
10
It isnecessary that innovation policies support collaboration and the sharing of
scarce resources for innovation. These policies can be complemented by
mechanisms that prioritize specific subsectors or territories in order to not divert
scarce innovation resources across too many activities.

11


As this paper will discuss, this is particularly the case with respect to most Latin
American countries with limited capacity for basic and applied biotechnology research.
Sophisticated licensing models can only contribute to research capacity when there are
also advanced mechanisms for IP management and advisory support services; dedicated
mechanisms to encourage public-private cooperation and knowledge-sharing; absorptive
capacity by training scientists and researchers in applied research and IP management; the
development of SME biotechnology firms through venture capital funding and support
services. With a few exceptions, this has been the experience of several countries with
emerging biotechnology systems in the Latin American and Caribbean (LAC) region,
where innovation systems are characterized by departmentalization and low levels of
inter-ministerial exchange and cooperation.
12

9
see Hartwich supra note 10 at 1
The limited amount of biotechnology R&D
being produced is not a result of proprietary limitations on biotechnology tools, but rather
of other factors, including underdeveloped local capital markets, lack of strategic vision
10
see Taxler supra note 13 at 38
11
Hartwich, Frank. Innovation Systems Governance in Bolivia; Lessons for Agricultural Innovation
Policies. Vol. 00732. Washington, D.C.: International Food Policy Research Institute, 2007 [Hartwich] at 6
12
Ibid Hartwich at 18; see also Smits, R. and Kuhlman, S. 2004. The Rise of Systemic Instruments in
Innovation Policy. International Journal of Foresight and Innovation Policy 1(2-3): 4-32. [Systemic
Instruments in Innovation Policy]
6



from the state, the absence of incentives for risk-taking in R&D and inadequate venture
capital mechanisms:
13
Experience with GMOs in LAC to date seems to indicate that the crucial strategic

links between research and the farmer are the existence of down-stream
capacities, that is, traditional plant breeding programs and operational seed
markets as well as commercial micro-propagation undertakings and other types
of industrial capabilities (i.e. plant diagnostic and veterinary medicine
commercial sectors, etc.), rather than the scientific capacity required to develop
the events or products involved.
14
Methodology


Brazil has been very successful in developing pro-poor biotechnological research
(at the basic, applied and commercial levels). This has very little to do with anything
pertaining to the use of specific licensing policies or instruments, but rather with the level
of strategic policy direction provided by the state. Moreover, novel licensing instruments
are likely to be ineffective in a developing country, such as Bolivia, whose
biotechnological capacity is still in its infancy and where there is also not a robust
innovation system already in place for other industries; in fact, there is also little evidence
that open-source or patent-pool licensing strategies would even be effective in Brazil
where there already exists developed biotechnology research capacity coordinated by
strategic national biotechnology policies. An objection to my methodology might be that
there have not been any instances of open-source licenses being used in either country,
and therefore, a conclusion that such licensing techniques would not make technology
transfer more efficient is premature. However, we must remember also that open-source
biotechnology licenses have not been used anywhere in the world, let alone in Latin

13
Taxler, Greg, et al. Recent Developments in Agricultural Biotechnology in Latin America and the
Caribbean: Implications for IDB Lending. Sustainable Development Technical Paper Series ed. Vol. RUR-
107. Washington, D.C.: Inter-American Development Bank, 2000. [Taxler]
14
Ibid Taxler at 52
7



America (this paper also contains a brief discussion of the main reasons for their lack of
adoption). This paper also contends that a two-country comparison is more appropriate
than a comparison of several countries in the region because Latin America is highly
diverse not only with respect to its vast genetic resources, but also with respect to socio-
economic and cultural characteristics.
15

15
Conde, Cecilia, Sergio Saldana, and Victor Magana. "Thematic Regional Paper: Latin America."
FightingClimate Change: Human Solidarity in a Divided World. Human Development Report 2007/08
ed.United Nations Development Program - Human Development Report 2007/08, 2007. [Conde]
Since the turn of the millennium, as the neo-
liberal policy mix held over from structural adjustment programs of the 1980s has slowly
given way to new innovation systems, there have been separate and distinct efforts in
several countries to make innovation policies more efficient. For example, Costa Rica is
developing new laws governing technological innovation; Columbia is also re-evaluating
its national innovation systems and developing legislation to put them into practice; and,
in Chile and Mexico, there has been legislation focused on providing funding to private
innovation clusters. This author does not believe it would be instructive to compare them
all as that could be better accomplished through a different paper. In addition, this paper
also holds that Brazil must be included in any relevant case study of biotechnological
innovation in Latin America. Brazil has emerged as an undisputed leader in
biotechnology research not only in the LAC region but also on the world stage; clearly,
Brazil is doing something right. A few other Latin American countries, namely
Argentina and Mexico, are also generally ahead of the curve, but this paper assumes a
comparison of the countries grouped towards the middle of the pack might not
sufficiently demonstrate the true nature of the policy drivers of strategic innovation.
Instead, it is a struggle of the countries with the least developed and emerging
biotechnology systems. What might they learn from the experiences of Brazil regarding
8



encouraging the development of agricultural biotechnology research? Similarly, can their
development be facilitated through the use of novel licensing strategies that Brazil has not
used?
This notwithstanding, the comparative analysis presented here concedes a few
prima facie issues in a two-country comparison. The first is with respect to population
size - Brazil has a large population and internationally renowned higher-education
system, while Bolivia is one of Latin Americas poorest countries whose development
over the last few decades has been marred by political instability. However, given the
similarities in terms of their respective levels of rural poverty, goals regarding the
management of biodiversity, respective state-led initiatives to generate basic research and
choice of intellectual property regimes (IPR), differences either in scale, e.g. GDP-style
economic valuations or the total value of agricultural experts, cannot adequately explain
the contrasting pictures of agricultural biotechnological development. (For all of Brazils
size, GDP per capita growth is nearly identical 4.1% in Brazil and 4.3% in Bolivia.
16

16
Figures are from 2008. International Fund for Agricultural Development "Rural Poverty in Brazil."
2010. <
)
This is not to say that both the political strife in Bolivia and the power of Brazils
economy have not, in some ways, affected the rate of biotechnological progress; no
industry is an island unto itself and it is true that economic power and political stability do
play a role in the success in the development of any industry. Nonetheless, this paper
holds that a comparison is still useful because of the similarities in levels of rural poverty,
systems to manage intellectual property in biodiversity and levels of biodiversity itself.
The alleviation of rural poverty is one of the targets of encouraging agricultural
technology transfer and the protection and use of biodiversity resources is a prerequisite
http://www.ruralpovertyportal.org/web/guest/country/home/tags/brazil>. [IFAD]
9



for achieving this goal. For instance, despite its size, Brazil is still a middle-income
country with a large and poor rural population. Poverty levels and human development
indicators in poor rural areas place Brazil among some of the poorest countries in Latin
America.
17
Moreover, both countries have large rural populations: approximately 19% of
Brazils total population lives in rural areas; similarly, 33% of Bolivias population is
situated in rural areas. Rural poverty in Brazil is rampant, affecting approximately half of
the rural population 18 million people making it the largest number of rural poor in
the Western Hemisphere.
18
Most of Brazils four million farms produce at the
subsistence level, yet also account for approximately 70% of its total food production.
19

17
See IFAD supra note 16

Importantly, both countries approach intellectual property from similar normative and
empirical perspectives. Both have signed many of the same international agreements,
such as the Convention on Biological Diversity (CBD), the International Union for the
Protection of New Varieties of Plants (UPOV) 1991 and the Trade Related Aspects of
Intellectual Property (TRIPS) Agreement. Both countries have enacted new pieces of
legislation protecting plant life Brazil through its Provision Act of 2001 and Bolivia
through its new Constitution introduced in early 2009. With respect to the levels of
biodiversity, Brazil and Bolivia are among the most biodiverse countries in the LAC
region. Along with India, China, Costa Rica, Ecuador and a few others, they are
considered to be mega-diverse developing countries, i.e. having around 60%-70% of
the worlds genetic resources within their borders. With these similarities, there is
sufficient background that we might compare the biotechnology innovation systems of
18
Ibid
19
Ibid
10



both countries through the intellectual property and plant protection regime in place to
manage and protect these resources.
This paper is divided into three chapters. Chapter 1 sets out the basis for my
analytical framework through a discussion of the proposed advantages of novel licensing
techniques as means to better manage and transfer agricultural biotechnology. Chapter 2
begins with a discussion of the main challenges facing the development of agricultural
biotechnologies in the LAC region, followed by a comparative analysis of the innovation
systems in Bolivia and Brazil. Chapter 3 distills some of the key lessons gleaned from
the comparative analysis of Brazil and Bolivia.





11

CHAPTER 1: Issues and Licensing Strategies in Accessing and
Transferring Agricultural Biotechnologies

This chapter will set out the basis for my analytical framework. It outlines the
proposed advantages of novel licensing techniques as a means to better manage and
transfer agricultural biotechnology. I shall begin by highlighting a few of the main issues
involved in accessing and transferring proprietary biotech research. Next, I shall
critically discuss several potential solutions that have been proposed to overcome these
challenges, beginning with a look at the use of standardized licenses, followed with a
brief discussion of patent pool arrangements and culminating with a larger discussion of
open-source licensing and the reasons why it is being proposed as a tool to improve the
management of proprietary biotechnology rights.

The public agricultural research conducted by universities and agricultural
research centers has been the [t]he traditional mechanism of supporting nutritional
research, both in the developed world and in the developing world.
20
Public research
institutions have also traditionally been the originators of new seed technology, as most
new seeds varieties in most developed nations came from national or public university
breeding institutions.
21

20
see Barton supra note 2 at 8
However, while public agricultural research benefitted from a
large amount of funding by governments and donors from the 1960s to the 1980s, it has
21
Public research institutions, including Consultative Groups on International Agricultural Research
(CGIARs) were the primary drivers of agricultural innovation in the Green Revolution during the 1960s and
70s. Ibid Barton at 8
12



remained mostly stagnant since then.
22
Inadequate funding for agricultural research has
diluted the influence of the Consultative Group of International Agricultural Research
(CGIAR) system. Traditionally, the international agricultural research system would
hand down research to national agricultural research centers, but the system of national
agricultural research centers (NARS) has been disrupted by the influx in scientific
research coming from public and private actors, universities and joint ventures,
23
At the same time, shrinking public sector budgets have increased private sector
participation in the generation of agricultural biotechnology research. With large R&D
resources to fund long-term projects, a critical mass of resources for scientific research,
expertise in marketing and distribution, and access to global markets, private firms have
replaced public institutions as the leading source of technological innovation for market
agriculture

resulting in a vacuous space in the research and development of new agricultural
technologies.
24
with the ability to determine research priorities at the basic and applied
level.
25

22
This is due in no small part to poorly funded agricultural policies of the economic liberalization reforms
of the 1980s throughout Latin America that favoured private sector involvement. see Barton supra note 2

23
Recently, the NARS system has been found to be inefficient in generating technological research,
unresponsive to the needs of small farmers and not conducive to wider stakeholder involvement. There has
been some effort to invigorate the concept of the NARS through the agricultural knowledge and
information system (AKIS), comprised of a group of organizations that facilitate knowledge management,
information sharing and cooperative interactions between farmers, universities, food co-ops and agro-
industry. This, too, however, has been criticized for its ability to generate concrete technical solutions and
so far it has yet to significantly impact decision-making in agricultural policies. As a result, the public
sector currently finds itself downstream of the private sector where research priorities are dictated by
private firms. see Hartwich, Frank, Anastasia Alexaki, and Rene Baptista. Innovation Systems Governance
in Bolivia: Lessons for Agricultural Innovation Policies. Vol. 732. Washington, D.C.: International Food
Policy Research Institute, 2007 [Hartwich] at 11. see also Rling, N., and P. G. H. Engel. "The
Development of the Concept of Agricultural Knowledge Information Systems (AKIS): Implications for
Extension." Agricultural Extension: Worldwide Institutional Evolution and Forces for Change. Ed. W. M.
Rivera and D. J . Gustafson. Amsterdam, Netherlands: Elsevier Science; see also Barton supra note 2 at 14
24
see Barton supra note 2 at 9
25
The priority of biotechnology innovation has been reducing costs in agricultural sectors that are already
highly productive by raising productivity levels through value-added activities and improvements in
13



Many academics and commentators have voiced concerns about how intellectual
property rights in biotechnology research are being managed by the private sector. The
concern is related to public sector access to research developed in the private sector
specifically, that technologies developed in the private sector will be locked down with
patent rights and this may ultimately reduce the quantity and quality of cutting-edge
research for pro-poor technologies. Freedom to operate in biotechnology research
defined as open and unencumbered access to basic research tools is very important in
public agricultural research. Due to the private sectors heavy involvement in agricultural
biotechnology, many key pieces of basic research have been patented, thereby potentially
limiting the public sectors freedom to operate. Also, with more and more agricultural
biotechnology subject to proprietary control, the potential for an increase in transaction
costs rises as well because researchers in agricultural biotechnology must coordinate
numerous disparate property rights in order to obtain an effective privilege of use.
26
The
assumption, then, is that public researchers will not pursue certain research activities for
fear they will infringe patents, creating a chilling effect that limits their freedom to
operate.
27
Long established patterns of intellectual communication essential to the
functioning of academic institutions are already being disrupted, with noticeable
delays in publication due to IP concerns. Intimidation of potential users of
According to the Inter-American Development bank, this concern already
exists in the Latin American and Caribbean region:

quality. While some view this as a normal evolution of the R&D investment cycle (i.e. areas offering high
rates of return are developed first, followed by lower-return areas over the long term.), technologies that
could benefit small farmers in developing countries are not sufficiently developed. see Taxler supra note
12 at p.13; see Chrispeels, M. J . "Biotechnology and the Poor." Plant Physiology 124 (2000): 3-6.
[Chrispeels]
26
Hope, J anet. Open Source Biotechnology. Doctor of Philosophy Australian National University, 2004
Australia. [Open Source Biotechnology]
27
Boettinger, Sarah. "Open Source Patenting." J ournal of International Biotechnology Law 1.2 (2004).
[Boettinger]
14



biotechnology because of complexity of IP issues and lack of experience of small
companies and public sector is a real risk.
28


Conversely, however, public research institutions require the knowledge capacity to
properly manage IP rights they acquire from the private sector skills ranging from
negotiating license agreements to dealing with potential patent infringement claims to
prioritizing the patenting of new research to maximize freedom to operate.
29
This is a
challenge for many public institutions that lack institutional IP management strategies;
where such strategies do exist, they are often inadequately staffed and funded:
30
The assembly of the different inventions leading to freedom to operate in the
market place is strongly influenced by institutional capacities to manage IP and
by institutional strategies related to partnership building. This is undoubtedly
one of the most critical areas where developing countries could benefit greatly
from assistance.

31


Similarly, there is a widespread misunderstanding regarding IPR and freedom to operate
in developing countries;
32
this confusion persists even in the international agricultural
research system. There is a lack of understanding not only about how domestic and
international patent laws work, but also what patent laws apply and how intellectual
property rights impact freedom to operate.
33

28
see Taxler, supra note 12 at 42
For example, a study of five Latin American
regions by the International Service for National Agricultural Research (ISNAR)
concluded that researchers often had no information with respect to the legal protection of
29
see Taxler supra note 12 at 42
30
The options for public research institutions for dealing with IP include: 1) inventing around the patents
(science and research based approach); 2)re-design product (product development approach) 3) Convince IP
owners to relinquish their ownership 4) ignore IP rights of owners 5) seek licenses for the IP and 6) A
pragmatic approach consisting of options 2 through 5. see Krattiger supra note 8
31
Ibid Krattiger at 15
32
Binenbaum, Eran, et al. "South-North Trade, Intellectual Property J urisdictions and Freedom to Operate
in Agricultural Research on Staple Crops." Economic Development and Cultural Change 51.2 (2003): 309-
35 at 315 [Binenbaum]
33
According to Binenbaum, a survey of the use of proprietary biotech research inputs at selected CGIAR
centers showed considerable confusion on the part of researchers regarding the existence of relevant IPR
and freedom to operate. see Binenbaum supra note 31 at 315
15



the technologies they were using, were not aware of the territorial limits of patent licenses
or how this affected their research.
34
Another frequently voiced concern relates to the licensing strategies of private firms.
In response to the public sectors touch-and-go approach to IP management, private
companies have developed a risk-averse IP management strategy (especially when
operating in developing countries) and prefer to license out technology with specific field
of use and territory restrictions in an effort to mitigate risk exposure.

35
When technology
is licensed, biotechnology companies tend to be very protective of their investments as
licensing results in a loss of control and offers few quality and liability assurances.
36

Companies also hesitate to grant licenses in emerging markets for fear of creating new
competitors.
37
Private firms are generally opposed to the idea of standardized licenses
because they want to make investment decisions on a selective, case-by-case basis.
38
For
example, the standardized open-source BiOS licenses developed by CAMBIA have yet to
be used by the private sector; private firms prefer to simply take out more patents on
research.
39

34
Even where the transfer of technology occurred through material transfer agreements that placed
restrictions on third-party uses, more than 70% of the researchers saw no problems with distributing their
final products and still believed their end-products would have legal protection. see Taxler supra note 12
at 45
As such, evidence suggests that what might be viewed by the public sector as
an unwillingness to deal is better characterized as an obligation to make informed
35
J anet Hopes writes: As the new wave of technology development has increased the chances of such
types of control, the same processes that can make developing countries more dependent on the import of
new technologies may cause redistribution of direct investment away from developing countries. see Open
Source Biotechnology supra note 25 at 13.
36
see Krattiger supra note 29 at 6
37
The terms of the license were not disclosed. see Taxler supra note 12 at 37
38
see Open Source Biotech supra note 25 at 65
39
Weiss, Rick. "Firms Seek Patents on Climate Ready Altered Crops." Washington Post 2008
<http://www.washingtonpost.com/wp-dyn/content/article/2008/05/12/AR2008051202919.html>. [Weiss]
16



investment decisions.
40
Private investment dollars will naturally seek out safer
biotechnologies in more sophisticated markets. In most cases, it is difficult to fault the
private sector for its hesitation to make long-term R&D investments in an uncertain
business climate for pure line crops such as beans, rice and wheat.
41
Many public research institutions have formed partnerships with the private sector in
an effort to narrow this public-private divide and generate new opportunities for
commercialization. There is a defined need to support basic research that offers only a
long-run and uncertain benefit for the industry, but is crucial for society, and then to work
with the private sector to integrate that research into products whose final research and
development and manufacture are carried out by the private sector.

42
Expert
commentators, including Anatole F. Krattiger, J ohn Barton and Susan Finston, in addition
to several international institutions such as the World Bank and the United Nations
Conference on Trade and Development (UNCTAD), suggest that public-private
partnerships can be instrumental in generating public sector agricultural biotechnologies
because they allow the public and private sectors to assume different, yet complimentary,
responsibilities in the R&D process. Partnerships often take the form of strategic
alliances and research contracts, but increasingly take the form of company-university
ventures
43

40
Interestingly, according to the Inter-America Development Bank, most private firms have been quite
willing to license out technology to research institutions in Latin America. This has opened up the
possibility that an institution can become a provider of agricultural biotechnology without actually having
any specific research strengths beyond basic research. see Taxler supra note 12
because universities are able to undertake the long-term, basic research on
41
see Taxler supra note 12 at 37
42
According to A.F. Krattiger, such partnerships are absolutely essential because little, if any, IP is
generated and used (i.e., sold) by one entity alone. Different players are almost always involved, with each
player extracting value from the IP in one form or another (e.g., directly through licenses, indirectly through
strategic advantages. see Krattiger supra note 29 at 9; see also Barton supra note 2 at 15
43
see From Action to Impact supra note 7
17



socially-beneficial technologies that is largely ignored by the private sector
44
and this
maximizes the comparative advantages of the public and private sectors. In theory, PPPs
leverage the private sectors disposable funds, specific expert knowledge, access to global
markets and production methods of private firms and the public sectors freedom to
operate and market linkages in undervalued markets. As such, it is widely argued that
public-private partnerships (PPPs) show increasing promise and reflect the substantial
role of the private sector in global agricultural research.
45
Interestingly, however, there is not much evidence indicating that PPPs have yielded
tangible results in agricultural biotechnology R&D.

46
In fact, only about 7% of all
genetic transformation events generated by national research systems were conducted in
collaboration with the private sector.
47
Creating linkages with public institutions through
long-term research ventures not only necessitates sharing trade secrets and scientific
knowledge,
48
but also exposes private firms to the risks of making large, fixed in-country
investments something that private biotechnology companies hesitate to do in
developing countries.
49

44
Many research developments are so uncertain that companies do not want to engage in areas which may
not turn out to be commercially viable. University research often suffers from financial constraints so that
research funding from the private sector is usually very welcome. see From Action to Impact supra note
7 at 21
A survey of the stakeholders involved in agricultural PPPs,
conducted by the International Food Policy Research Institute, found that, among the
45
Ibid at 21
46
see Spielman, David J . "Evaluating the Changing Role of Agricultural R&D, Partnerships, and Networks
in Enhancing Technological Opportunities for Sub-Saharan Africa." A RoadMap Towards Making the
Benefits of GM Crops Available to Resource-Poor Farmers in Africa. Bellagio, Italy, September 13-17
2005. [Spielman]
47
see Atanassov, Atanas, et al. To Reach the Poor Results from the ISNAR-IFPRI Next Harvest Study on
Genetically Modified Crops, Public Research and Policy Implications. EPTD Discussion Papers ed. Vol.
116. Washington, D.C.: International Food Policy Research Institute, 2004.
48
see Taxler supra note 12 at 38
49
In many cases, national laws on biodiversity influence a private firms decision to invest. Many countries
that have ratified the Convention on Biological Diversity require equitable access and benefit sharing
terms in material transfer agreements. This policy can be an obstacle for private investment as the term
equitable is very vague and complications from legal costs and possibly public relation issues. see
Krattiger supra note 29 at 6-7
18



several factors which constrain PPPs, transaction costs were too prohibitive and incentive
structures in the public and private sectors were fundamentally different.
50
The survey
concluded that [t]here is a need for greater study of the structural, organizational and
managerial aspects of partnerships to make the approach more feasible and more relevant
to the needs of resource-poor farmers.
51
The importance of institutional IP management capacities can be illustrated
through the steps in the technology process in public-private partnerships. This process is
directly affected by government regulations on investment, taxation and intellectual
property.
Thus, it is reasonable to conclude that research
and IP management capacities need to be addressed before any issues pertaining to
accessing or transferring technologies.
52
It is also not linear, taking place over the course of the entire product
development cycle from basic research to commercialization in the marketplace.
53
As
such, it is akin to an organic process where the research value of IP rights and transaction
costs acquiring such rights must be continually evaluated against the goal of maximizing
freedom to operate. For example, at the initial product clearance stage of acquiring
research technology, strategic decisions must be made regarding what components,
technologies and processes might need to be acquired under license.
54

50
Spielman, D. J ., and Gruber Von K. Public Private Partnerships in Agricultural Research: An Analysis of
Challenges Facing Industry and the Consultative Group on International Agricultural Research. Vol. 113.
Washington, D.C.: International Food Policy Research Institute, 2004. [Spielman & Gruber]
If alternative
51
see Spielman supra note 45

52
Technology transfer is the process of developing practical applications from the results of scientific
research. see Finston, Susan. "Technology Transfer Snapshots from Middle-Income Countries: Creating
Socio-Economic Benefits through Innovation." Intellectual Property Management in Health and
Agricultural Innovation: A Handbook of Best Practices (Volume 2). Ed. Anatole Krattiger, R. F. Mahoney,
and L. Nelsen. Mill Street, Oxford, U.K.: MIHR (Centre for the Management of Intellectual Property in
Health Research and Development) and PIPPRA (Public Intellectual Property Resource for Agriculture),
2007. [Finston II]
53
see Krattiger supra note 29 at 15
54
The first regulatory hurdle in the technology transfer stage is the systematic product clearance - a quasi-
legal document produced that outlines: the methods and procedures used to create the product; its principal
19



technologies exist, researchers can focus only on those items where IP rights can be
secured; if rights are not able to be secured, then research can be re-focused to invent
around patent rights.
55
Because the corporate world is in a constant state of change, determining
precisely which entity has the right to grant licenses for a particular component
or process is not always straightforward. Indeed, as companies re-structure,
sell/assign patents, or grant licenses, with or without the right to sub-license,
the degree of uncertainty increases.
This product clearance process can often increase the transaction
costs in acquiring technology and is frequently cited as a major concern in situations
where there is inadequate public sector capacity to navigate IP rights:
56


Due to the need to assemble technologies at various stages of the process, government
policies aimed at encouraging biotechnology development can make technology transfer
more efficient by regulating the complex set of relationships between IP owners from
public and private institutions. Regulation of these relationships can take several forms.
Some academics have called for reform in the issuance and management of biotechnology
patents. Art K. Rai has proposed that government institutions and agencies should be
allowed to limit or circumvent patent rights should an anti-commons scenario emerge.
57

components; the IP rights attached to each principal component; and, the owner of these IP rights. It is vital
that happens at the earliest possible time in the R&D cycle to avoid future IP interference issues. The next
step in the technology transfer process involves obtaining a freedom to operate opinion (FTO) from a patent
attorney. This should also be completed as early as possible in the development process. Most public sector
institutions engaging in agricultural biotechnology R&D will be limited in the number of FTO opinions
they can acquire due to such high transaction costs. see Krattiger supra note 29 at 15

Dan Burk argues that patents should be technology specific, meaning when granting
patents, a judge (and not a patent examiner per se) should pay attention to the specific
factors and consequences of granting the patent, including the size of the industry,
55
Ibid Krattiger at 15
56
The product clearance for the development of Golden Rice technology was particularly challenging due to
the uncertainty in determining which parties were the patent assignees.
57
see Rai, Art K. "Genetic Technology: Social Values and Personal Autonomy in the 21
St
Century." Wake
Forest Law Review 34.827 (1999). [Rai]; see Adelman, David J . "A Fallacy of the Commons in Biotech
Patent Policy." Berkeley Technology Law J ournal 20 (2005): 985. [Adelman]
20



competition levels and transaction costs.
58
The National Academy of Sciences has also
proposed several reforms to the U.S. patent system, including giving the U.S. Patent and
Trademark Office (USPTO) more flexibility in considering newly developed
technologies, raising the threshold for the non-obviousness standard, instituting an open
review procedure for new patents and carving out a narrow research exemption.
59
Unfortunately, there are issues with these propositions as possible ways to regulate
the IP relationships between public and private actors. For example, reforms to the patent
system might reduce the number of patents for agricultural biotechnology applications
due to the risk-averse nature of corporate investment strategies. Moreover, most of these
solutions have been by developed countries - net exporters of biotechnology that also
have an established patent regime and robust policy environment in place. Application in
a developing country context will look very different, where issue is not so much with the
patent system itself but rather the existence of information channels and the institutional
capacity to absorb technology. As net importers of biotechnology, developing the
institutional capacity to manage technology transfer licenses would probably be more
appropriate. It is also likely that merely changing the contractual terms without also
making other substantial revisions to how rights acquired under the contract can be
reduced to practice ignores some of the more significant challenges posed by the external
regulatory environment and innovation policy.




58
Burk, Dan, and Mark A. Lemley. "Is Patent Law Technology Specific?" Berkeley Technology Law
J ournal 17.1155 (2002): 1202. [Burk]
59
Merill, Stephen. A Patent System for the 21
St
Century. Washington, D.C.: National Academy of Sciences,
2005. [NATS]
21



1.1 Standard Licenses

One suggestion that has gained some traction within academic circles is to simplify
the rights transfer process through standardized licenses.
60
Appeals for the widespread
adoption of standard use licenses have become more common given the use of Material
Transfer Agreements (MTA) as the main rights transfer instrument in the technology
transfer process.
61
Standard MTA clauses, such as the definition of material and field-of-
use clauses, will define what is covered by the agreement and how and where the
technology can be used.
62
There are also transaction costs involved with negotiating
MTAs: for example, a prospective licensee must first find the licensor, a process made
more complicated by the fact that there can be multiple parties with rights to a piece of
technology.
63
This process alone can involve considerable cost. Once owners are
located, there will be several rounds of negotiation, laid out in both formal and informal
agreements, such as confidentiality agreements, material transfer agreements, and
agreements to negotiate.
64

60
Expert commentators including J ohn Barton and J ohn Walsh have studied the issue of transaction costs in
agricultural biotechnology licenses and concluded that it would be helpful to develop a standard set of
licenses to facilitate rights transfer. See Open source biotechnology supra note 25 at 99
Due to such costs, it is thought that creating a more
standardized licensing mechanism might reduce or possibly even eliminate such
61
Material Transfer Agreements, generally drafted separately from the main license agreement, define the
extent and purpose of the transfer and also provide a succinct technical description of the material so that
the licensee can use the technology without having to conduct more research. see Open source
biotechnology supra note 25 at 109
62
There will also commonly be a grant-back clause where the licensor right retains rights to modifications
or derivatives made from the material that incorporates the investigators original ideas or concepts.
Though the determination of whether such clauses are anti-competitive will depend on the wording in each
agreement, they do make it more difficult for the licensee to confer rights to a future developer, which
greatly reduces the commercial utility of the research and might also reduce the incentive for the licensee to
make full use of the technology. Kaplan, Warren. Using Intellectual Property Agreements to Promote the
Objectives of Public-Private Partnerships in Developing Affordable Products for Developing Countries.
World Health Organization - Center for International Health & Development. [Kaplan]
63
According to Eran Binenbaum, [w]here ownership of relevant rights is sufficiently diffuse, the
multilateral bargaining problem can become impossible to resolve . See Binenbaum supra note 31 at 313
64
see Open source biotechnology supra note 25 at 109
22



transaction costs. The concept of using standard licenses was also the basis for the
establishment of PIPPRA; and, more recently, the National Institute of Health (NIH) also
created a Uniform Biological Material Agreement as a standard license.
65
However, there are several issues with the use of standard licenses. It is possible
that the inherent subject matter of biotechnology contracts (i.e. difficulties in delineating
rights to living materials comprised of several individual components) makes standard
licenses difficult to be adopted on a large scale.

66
This was the case with the NIHs
Uniform Biological Material Agreement (UBMA), which was not widely used because it
was too legally formalistic and technical.
67
In response, the NIH modified its approach,
recommending that patenting and licensing policies be tailored to the level of commercial
development being sought: for example, if large private sector investment is necessary,
then the technology should be patented, or, if investments are not necessary, patenting is
most likely not necessary.
68

65
According to the NIH, the UBMTA and other standard agreements are designed to reduce the cost of
negotiating licenses on a case-by-case basis. Interestingly, the NIH also reports that many universities have
only approved the terms of the UBMTA, but still continue to use their own license agreements. see
National Institute of health (NIH). Report of the National Institutes of Health Working Group on Research
Tools. National Institute of Health (NIH), 1998. [NIH Report]; see also Hope, J anet. Biobazaar: The Open
Source Revolution and Biotechnology. President and Fellows of Harvard College, 2008 [Biobazaar] at 225
NIH advocated for responsible licensing strategies and a set
of specific policy recommendations that are designed to stimulate the development for IP
knowledge management, including: research policies that require institutions to develop a
66
J anet Hope argues that , while biotechnology licenses routinely contain definitions of materials,
products and technology as well as of patents and other proprietary rights, drafting these definitions is
not a routine matter. Poorly drafted MTAs are especially problematic given that licenses deal with
unpredictable, evolving living materials. see Open source biotechnology supra note 25 at 65, 116.
67
Though it was designed to be a genuinely user-friendly license, its boilerplate language is still regarded
by most to be overly complicated and difficult to interpret. see Open Source Biotech. see also NIH Report
supra note 64
68
The NIH also holds that patenting is not required for many research tool technologies as they will most
likely never be developed commercially. Ibid NIH report at 95
23



set of best practices for licensing as a condition for receiving research funding grants;
69

enlarging the experimental use exemption in patent law; re-evaluating the standards of
non-obviousness and utility; and changing how patent examiners approach new
developments in biotechnology.
70
To enhance the prospect that licensing is conducted
efficiently, the NIH developed the Cooperative Research and Development Agreement
(CRADA) as a part of monitoring component in the project approval process. CRADAs
are an example of a type of policy that creates the appropriate information-development-
commercialization channels that actually encourage the creation and dissemination of
new agricultural technologies. CRADAS are designed to make government facilities,
intellectual property, and expertise available for collaborative interactions to further the
development of scientific and technological knowledge into useful, marketing products
71

and would ensure that each project is carefully evaluated for its overall research
objectives. In this way, CRADAs could also be a monitoring tool in public-private
partnerships to evaluate whether a collaborative arrangement is even necessary given the
research tools being used and the research goal being sought.
72
In addition to standardized licenses, it has been suggested that patent-pooling is
another novel licensing strategy that might increase public sector access to biotechnology


69
The NIH believes that by placing responsibility with the applicant, bureaucratic inefficiency will be
reduced. As a result, a normative shift in attitude would occur because applicants develop a consensus as to
what steps are required in order to obtain funding. see Merill, Stephen, and Anne-Marie Mazza, eds.
Reaping the Benefits of Genomic and Proteomic Research: Intellectual Property Rights, Innovation and
Public Health.The National Academic Press, 2006. [Mazza] at 139
70
With regard to experimental use, it was proposed that there should be no patent infringement if the goal
of the research is to discover: 1) the validity of the patent and scope of afforded protection; 2) the features,
properties, or inherent characteristics or advantages of the invention; 3) novel methods of making or using
the patented invention; or 4) novel alternatives, improvements or substitutes. Ibid Mazza at 141-145.
71
National Institute of Health (NIH). "Model CRADA Agreements." National Institute of Health (NIH)
Office of Technology Transfer. 2010. <http://www.ott.nih.gov/cradas/model_agree.aspx>.
[OTT]
72
In some cases, a CRADA may not be necessary if one or more of the research goals can be met through
another type of contractual instrument, such as a procurement contract, MTA or cooperative agreement.
Ibid OTT
24



research. A patent pool is an arrangement whereby two or more patent owners agree to
license one or more of their patents to each other or to third parties. Rights transfer in
patent pools is generally accomplished through an exclusive license or an assignment to a
separate administrative entity charged with controlling the patent portfolio.
73
Similar to
open-source licenses, patent pools can avoid creating an anti-commons scenario by
removing licensing costs and facilitating knowledge-sharing.
74
The use of patent pools in the biotechnology field could serve the interests of
both the public and private industry, a win-win situation. The public would be
served by having ready access with streamlined licensing conditions to a greater
amount of proprietary subject matter. Patent holders would be served by greater
access to licenses of proprietary subject matter of other patent holders, the
generation of affordable pre-packaged patent stacks that could be easily
licensed, an additional revenue source for inventions that might not otherwise be
developed. The end result is that patent pools, especially in the biotechnology
area, can provide for greater innovation, parallel research and development, the
removal of patent bottlenecks and faster development
In a 2000 white paper, the
USPTO extolled the idea of patent pools in biotechnology, concluding that:
75


Similarly, the Food and Agriculture Organization (FAO) has also applied the idea of
pooling research in the form of the access and benefit sharing mechanisms found in the
International Treaty on Plant and Genetic Resources for Food and Agriculture
(ITPGRFA).
76

73
Terms of the license, such as royalties, field of use restrictions and termination, are left to the parties to
negotiate.
It establishes an interesting licensing model for an international
74
The National Research Council of the National Academies writes that [p]patent pools remove
intellectual property barriers to the exploration of technology, promote the integration of complementary
technologies, and reduce the transaction costs of obtaining multiple licenses see Mazza supra note 69 at
97-99; Patent pools are thought to have many of the same advantages as open-source licenses in promoting
access to biotechnology research tools: the avoidance of blocking patents and stacking licenses;
reduction of licensing transaction costs; improved risk distribution; and the exchange of trade secrets not
necessarily covered by patents see also Clark, J eanne, J oe Piccolo, and Brian Stanton. Patent Pools: A
Solution to the Problem of Access in Biotechnology Patents?. U.S. Patent and Trademarks Office (USPTO),
2000. [USPTO]
75
Ibid USPTO at 11
76
The ITPGRFA was created by the Food and Agriculture Organization (FAO) on November 2001 and
entered into force in J une 2004. The goal of the ITPGRFA is to ensure that intellectual property rights
25



biotechnology framework that encourages collaborative research. It is thought that the
ITPRGFA can simplify the management of IP rights by reducing the layers of potential
licensing and cross-licensing agreements by creating a commons to preserve the genetic
materials that form the foundation of agriculture. The treaty also protects both private
and public interests because it allows for the commercial development of agricultural
technologies while also allowing for the preservation of fair and equitable access and
benefit sharing.
77
Nonetheless, neither framework in the ITPGRFA nor patent pool arrangements have
been readily adopted by the biotechnology industry, mostly owing to concerns of
violating anti-trust legislation (patent pools can either restrict competition or output
depending on whether the licenses are assignments, exclusive or non-exclusive
licenses).

78

regimes do not inhibit the ability of private and public participants to access the materials and technology
required to carry out research and breeding at both the national and international level. see
Moreover, with respect to the ITPGRFA, the transfer of genetic materials is
still regulated through Standard Material Transfer Agreements (SMTA). Although the
Saez, Catherine. "International Seed treatys Goals of Biodiversity and Food Security are Tough to
Implement." IP Watch (2008): Dec 1 2009. <(http://www.fao.org/ag/AGP/AGPC/doc/services/pbn/pbn-
193.htm#a116>.
77
For example, under the treaty, recipients of genetic materials cannot claim IP rights over the material they
have received through the system without voluntary consent of contributing members. Members agree to
make their genetic diversity and crop information stored in their gene banks available to all other members
through an online database. Materials distributed for use in food and agriculture are made available free of
charge or at minimal cost. Should members wish to assert IP rights in a piece of technology, they must
enter into voluntary agreements with other parties.
77
Similarly, should a recipient of material create a new
plant variety with genetic materials obtained in the system, any benefits from its use or commercialization
must be shared fairly and equitably. see Halewood, Michael, and Kent Nnadozie. "Giving Priority to the
Commons." The Future Control of Food: A Guide to International Negotiations and Rules on Intellectual
Property, Biodiversity and Food Security. Ed. Rajotte Tasmin and Goeff Tansey.International Development
Research Centre (IDRC), 2008. 115. [Halewood]
78
The U.S. Department of J ustice and the Federal Trade Commission have issued policy direction
guidelines on anti-trust issues in IP licensing. Inter alia, patent pools may be anti-competitive if 1) excluded
firms cannot effectively compete in the relevant market for the good incorporating the licensed
technologies; 2) pool participants collectively possess market power in the relevant market, and 3) the
limitations on participation are not reasonably related to the efficient development and exploitation of the
pooled technologies. see Anti-Trust Guidelines for the Licensing of Intellectual Property. Washington,
D.C.: U.S. Department of J ustice and Federal Trade Commission, 1995. see also Standard Oil Co. v.
United States, 283 U.S. 163 (1931) for a discussion of the differences between legitimate and prohibited
abuses of restrictions in patent pool arrangements.
26



ITPGR Governing Body crafted the SMTA to minimize the conditions imposed on a
projects freedom to operate, the clauses in the SMTA are still relatively complicated and
it is not yet clear to what extent these conditions might still prove to be cumbersome for
sustainable agricultural innovation. More importantly, the private sector has been
reluctant to share research and contribute genetic materials and currently there are strong
doubts about how effective this system will be at encouraging technology transfer without
significant private sector cooperation.
79
The effectiveness of patent pool arrangements
also depends on the specific concerns of the biotechnology industry. In biotechnology,
where patents are used offensively, patent pools increase the risk that a company will
forgo significant revenue if it had instead licensed its technology on an exclusive basis.
80

Patent pooling also does not necessarily overcome the transaction costs involved with
locating multiple patent owners. In certain cases, a more knowledgeable public institution
can negotiate cross-licensing agreements to make use of the technology,
81

79
see Halewood supra note 76
however
drafting cross-licenses is costly and time consuming; in many cases, simply locating the
patent owner can be difficult. Over and above any practical issues facing the adoption of
patent pools, there is also widespread disagreement on the empirical assumption that
patent pools or similar cross-licensing agreements would actually increase access in
innovation in R&D. A 2002 study of biotechnology and pharmaceutical companies by
the Organization for Economic Co-operation and Development (OECD) revealed that
companies engaged in cross licensing arrangements or public-private partnerships found
80
see Mazza supra note 68 at 98
81
see Boettinger supra note 26 at 227
27



it difficult to measure the relative contributions of each part and thus were very skeptical
of such arrangements.
82
In the context of agricultural PPPs, there are further concerns voiced by the private
sector. There is the issue of liability for a private firm that donates a piece of technology
to a PPP: the firm forgoes licensing income but nonetheless incurs liability for direct or
contributory patent infringement claims. There must be a mechanism to deal with this
type of liability

83
- and frankly, most PPPs do not address this. Similarly, the protection
of trade secrets and confidential information is often not addressed by the public sector
84
Despite this general agreement that current practices have had certain undesirable
results, there appears to be no consensus on what is wrong with current practices
and what should be done about them. Indeed, scientists, university technology
transfer officials, and private firms express sharply divergent views as to the
source of the problems that they all recognize. Moreover, because many issues
relating to the transfer of research tools implicate core values of each of these
groups, views are not only sharply divergent but very firmly held. These factors
make it difficult to fashion mutually acceptable resolutions, even though the
problems are evident to all concerned.


and this has also been cited as a major reason for the private sectors unwillingness to
engage in standard-use licenses, open-source licenses and patent-pooling arrangements
with multiple public sector licensees in developing countries. The NIH has accurately
distilled this divergence in perspectives:
85

(Emphasis added)


82
see NIH Report supra note 64
83
The World Bank has identified liability for biotechnological donations as a key issue in facilitating
public-private partnerships. See Dods, J . H. "Biotechnology, the Gene Revolution and Proprietary
Technology in Agriculture: A Strategic Note for the World Bank." IP Strategy Today 2 (2001). [Dods] at
28-29
84
Confidentiality is important not only in IP matters but also in regulatory and trade matters. There is the
concern that sophisticated licensing techniques, such as open-source, may require a company to give up
[unpatented] trade secrets required to practice the technology without subsequent restrictions as to what
other parties will do with this information. see Ibid Dods at 29
85
see NIH report supra note 64
28



1.2 Open-Source Licenses

Extending the philosophy behind patent pools a bit further, the use of open-source
licenses is perhaps the most creative proposal to improve access while also preserving the
culture of technology licensing and remaining within the ambit of existing patent laws.
The goal of open-source licenses is to maintain the proper balance between the
enforcement of patent rights and the ability of researchers and collaborators to develop
the technology and move the project forward.
86
It is thought that open-source license
models help re-position the public sector upstream of the private sector and do more
basic research.
87
Open-source licenses have particular appeal given the transaction costs in
negotiating access to biotechnology. Technology transfer license agreements are
inherently complicated through their use of complex, legal language and can also be
poorly drafted, resulting in contracts that are more costly to draft and interpret.

88
While
open source licenses are neither incomplete nor un-technical, they focus on the rights
directly associated with the material being transferred.
89

86
seeBiobazaar supra note 65 at 117
Also, as they are easier to draft,
87
see open source biotechnology supra note 25 at 15
88
While there has been discussion among experts about the use of standard, industry-wide open
source licenses, the use of standardized licenses has not been widely adopted, especially in the
private context, as biotech companies are hesitant to adopt a standard set of licenses for all their
operations, preferring to evaluate each agreement on a case-by-case basis. see Biobazaar supra note
65
89
Many developing countries have signed various international agreements governing the structure of
domestic IP laws, including the Paris Convention of 1883 and TRIPS, the International Treaty for Plant and
Genetic Resources for Agriculture (ITPGRFA) and the Convention for Biological Diversity for many
developing countries. These agreements create a robust system that balances intellectual property
protection with access to research. Importantly, every agreement adopted by a developing country can add
a layer of complexity to the availability of IP protections, including certain policies such as national
treatment clauses and the establishment of minimum IP standards (i.e. minimum IP laws mandated for
WTO members by TRIPS.) Nonetheless, the impact of these international commitments must be considered
when making the decision to include open-source licenses as the main vehicle of technology transfer. see
open source biotechnology supra note 69 at 170
29



read and understand for non-legal professionals, it is suggested that open-source licenses
can facilitate the management of proprietary rights, particularly in the context of public-
private partnership. Open-source licenses also work alongside traditional licensing
mechanisms and, generally, within existing patent laws, and thus do not require any large-
scale changes to the existing intellectual property legal framework.
90
Like conventional
patent licenses, the rights conferred through open-source licenses are proprietary in the
sense that they are granted by a licensor to a licensee; however, the difference is that the
basis for granting the license is not necessarily to the exclusion of all others.
91
Open-
source licenses may also obviate the need to negotiate multiple cross-licensing
arrangements: they require that parties agree that the improved technology be freely
cross-licensed or become part of the original research once again.
92
An important and frequently cited advantage of open-source licenses is that their
inherently collaborative structure is well-suited to the nature of the scientific R&D value
chain.

93
Whereas traditional agricultural R&D is structured vertically where the
development of the basic knowledge and its applications to technology generation are
closely interrelated, usually under-taken within the same organization
94

90
In fact, contrary to popular belief, open source licensing makes use of existing intellectual property
laws. see Biobazaar supra note 64 at 9
biotechnology
R&D is horizontal, encompassing many disciplines more closely related to pure science,
such as rDNA and genetic engineering principles. Most agricultural biotechnologies are
91
It has been suggested that the absence of such technicality has almost certainly contributed to the
widespread adoption of open source software licenses. see source biotechnology supra note 69 at 110
92
Licensees enter into binding agreements on the legal condition of keeping any improvements to the
technology accessible to all other licensees, protecting the technology for open use. see Biobazaar supra
note 65 at 227
93
The biotechnology R&D levels are Basic Research where the primary research objective is exploratory
or investigative; Applied Research where the goal is to answer the questions arising from exploratory
research in a more focused manner; and Commercial Development where ideas arising from basic/applied
research are used to create a product intended for commercial sale
94
see Taxler supra note 12 at 43
30



made up of components from other disciplines such as chemistry, botany and geology.
95

Open-source biotechnology R&D is viewed by some as an extension of the open and
collaborative knowledge management systems that have historically driven the
development of new agricultural technologies.
96
Product development in agricultural
biotechnology is a very complex process, comprising several phases in the research value
chain from the conception and funding of research to the publication of and access to
the resulting data and finally culminating in the patenting of technologies invented by
publicly funded agents.
97
It is a process best viewed as a set of tools that extends the
scope of agricultural research.
98
Open source licenses allow researchers to decide from
the beginning how they envision the development cycle and ultimate end-use of the
technology. Not only are researchers free to pursue innovative research fields or end-
uses, but also this inherent freedom to operate can improve the possibility that future
licenses can be more easily negotiated in future stages in development.
99
As such, it is
possible that open-source licensing arrangements that freely encourage cooperation
between licensees can be quite helpful at the level of basic and applied research,
100

95
see open source biotechnology supra note 69 at 59
where
access to information and research tools is what matters and proprietary ownership is less
96
Rajotte, Tasmin. "The Negotiations Web: Complex Connections." The Future Control of Food: A Guide
to International Negotiations and Rules on Intellectual Property, Biodiversity and Food Security. Ed.
Geoffrey Tansey and Tasmin Rajotte.International Development Research Centre (IDRC), 2008. [Future
Control of Food]
97
Octaviani, Alessandro. "Biotechnology in Brazil: Promoting Open Innovation." Access to Knowledge in
Brazil: New Research on Intellectual Property, Innovation and Development. Ed. Lea Shaver. Yale
University, Boston, M.A.: Information Society Project, 2008. [Octaviani] at 155-56
98
Taxler supra note 12 at 41
99
J anet Hope and Eran Binenbaum posit that if a research program or commercialization proceeds before
obtaining freedom to operate in enabling technologies, future negotiations may be placed in serious
jeopardy. The negotiating position of the innovator typically deteriorates as innovation progresses.
99
This
is extremely helpful in the context of agricultural biotechnology where technology is often licensed at
an early stage of development, before the precise nature and utility of the product is known and sometimes
before it can be protected except by trade secrecy
100
The function of a license is not to allow the sale of a product to the end userbut to facilitate the
integration of valuable information from a range of sources by establishing, not a product market, but a co-
operative partnership see Open source biotechnology supra note 69 at 105
31



important.
101
Ultimately, the discussion surrounding open-source licensing is really about finding
new ways to strengthen the collaborative environment in the public sector through
improved IP management and increased access to patented technologies, culminating in
the commercialization of public goods research.
It is this conceptualization of the agricultural R&D that has generated
interest in the possibility of using open-source licenses as a mechanism to improve access
to the biotechnology research tools which might facilitate both technology transfer and
innovation at the R&D level.
102
Interestingly, though, what little has
been written on the acceptability of open-source licensing models reveals that it is highly
likely that the number of projects abandoned or delayed due to limited access to
technologies is actually quite small.
103

101
Where ownership does become important is at the time for commercialization. This is where
conventional biotech licenses are more appropriate for the Commercial Development Stage, where the
licensor wants to retain the greatest degree of control over their technology and the licensee wants to
maximize freedom to innovate. Furthermore, the World Bank recognizes the difference between access to
information and ownership of information: scientists and researchers require access to information, but for
the companies that develop products and bring them to market, ownership is critical. see Dods supra note
82 at 26
It is not the presence of proprietary patent rights
that determined whether projects were most likely to be abandoned, but rather (in the
order most frequently cited by researchers): a lack of funding; conflicts with other
research priorities; and determinations that a project is not scientifically possible or
102
Critics of the Bayh-Dole Act in the United States, such as Sara Boettiger and Alan Bennett, argue that a
re-alignment between public and private innovation systems is necessary to create the optimal conditions
for public-private technology transfer. This implies a critical re-evaluation of the IP policies and laws that
underlie a national innovation system. see Biobazaaar supra note 64 at 274-275
103
Due to what little research has been done on the applicability of open-sour licenses to agricultural
biotechnology, we can rely on the conclusions derived from examining the applicability of open-source
licenses to biotechnology R&D in medicine. Though there are differences in both the scale, diversity of
research and distribution and nature of ownership in the human and agricultural biotechnology industries,
the two disciplines do overlap scientifically and it is fair to compare the two. The National Academy of
Sciences in the United States was commissioned by the National Institute of Health to study the effect of
granting licenses in biotechnology research. The study found that access to patented inventions or
information inputs into biomedical research rarely imposes a significant burden for biomedical researchers
see Mazza supra note 68 at 2-3
32



engaging.
104
For example, in medical biotechnology, the amount of projects abandoned
or delayed as a result of difficulties negotiating rights to technologies is very small: when
researchers believed they needed permission to use a technology they sought it from the
patent owner; if no permission was given, some would still go ahead with the research.
105
Therefore, while it is true that licensing models created with a view to fairly
distribute the burdens and benefits of biotechnology research do offer certain advantages
over more conventional licensing strategies, they are merely one small component in the
broader scope of science and technology innovation policy. These models are not likely
to benefit biotechnology industries that are still acquiring research capacity, lack IP
management skills and are (generally) net importers of biotechnology. Richard J efferson,
the founder of CAMBIA and the creator of BiOS Open Source license, has explicitly
recognized that open-source licenses are merely one small piece of the puzzle:

The obstacles preventing the sharing of research materials between laboratories were not
related to IP rights but rather to wider innovation policies: specifically, a lack of
incentives and rewards for engaging in specific projects and the lack of
commercialization opportunities in academic circles.
The cheerleading rhetoric of open source, open access, open whatever, really is
not enough, nor is it sophisticated enough to make the necessary efficiency gains
in the innovation processes in poor countries, or for that matter, in rich countries
dealing with poor people or neglected priorities. BiOS can be - if done well -
about sharing the costs, sharing the load, making development faster and more
transparent. But our experience in the last five years is that it must grow up. It
must become a sophisticated part of innovation system reform, and must be built
solidly on total patent system transparency.
106

(Emphasis added)

104
Ibid Mazza supra note 68 at 123
105
Ibid Mazza
106
Kanashiro, Marta. "Entrevista Com Richard J efferson." Vida Sintetica 2008.
<http://www.cambia.org/daisy/bios/4343>[Kanashiro]
33



However, this is not to say that intellectual property rights might not limit access in the
future. As institutions increase their capacity for intellectual property rights and explicit
awareness about exposure to patent infringement liability, there will most likely be more
regulation over the activities of researchers, potentially inhibiting certain aspects in the
research process.
107
Similarly, patent owners would likely start taking more legal action
against universities and research institutions for infringement, leading to an increase in
demands for licensee fees, grant-back rights or other restrictive licensing terms.
108
But
today, however, despite much theorizing by academics and commentators, there is no
significant evidence of patent thickets and patent-blocking situations that are preventing
public sector access to private technologies.
109
Therefore, if public sector access to research tools is not being unduly limited by
proprietary rights, then novel licensing techniques are not the most efficient option in
encouraging innovation in the development of public goods biotechnological research.
This next chapter presents a contrasting look at the innovation systems in Brazil and
Bolivia to demonstrate that the vast gulf in commercializable biotechnologies is such that
it cannot be explained by intellectual property rights limiting research capacity. Rather,
the comparison will demonstrate that public sector access to research is a product of
government strategic policies that create an environment which fosters innovation and
commercialization. Even in Brazil, where the technical capacity for high-level
biotechnology research exists, there is no guarantee of physical availability and


107
see Mazza supra note 68 at 134-135
108
Ibid Kanashiro supra note 105
109
In its study, the NIH concluded that the apparent lack of substantial evidence for a patent thicket or a
patent-blocking problem is associated with a general lack of awareness or concern among investigators
about existing intellectual property. see Mazza supra note 68 at 132
34



accessibility which can be established only with the right economic incentives and
effective institutional structures in place.
110




110
Karapinar, Boris, and Michelangelo Temmerman. Benefitting from Biotechnology: Pro-Poor IPRs and
Public Private Partnerships. Vol. 35. Swiss National Centre of Competence in Research, 2007. [Karapinar]
at 30



35

CHAPTER 2: Biotechnology Policies in Latin America: Innovation
Systems in Bolivia and Brazil

This chapter begins with a brief discussion of a few of the challenges facing
agricultural biotechnological development in Latin America. This is followed by a
comparative analysis of the agricultural innovation systems in Bolivia and Brazil. There
is a stark contrast between the two countries in terms of the amount of new agricultural
biotechnologies that are generated and commercialized. The effectiveness of Brazils
innovation system cannot be explained by the use of novel licensing techniques to
increase access to proprietary technologies, but rather by the presence of concerted
national biotechnology strategies and policies aimed at increasing research capacity and
encouraging innovation in small-to-medium enterprises (SME) working in biotechnology.
The discussion of the innovation system in Brazil will focus on the effects of the National
Biotechnology Policy, centered on the innovation system in place at the State of Sao
Paulo Research Foundation (FAPESP). The development of two specific projects, the
Genome Project and the introduction of zero-tillage (ZT) technology, will be highlighted
as examples of successful projects that did not depend on either IP management capacity
or the use of novel IP licensing strategies. Next, this chapter discusses Bolivias
innovation system, focusing on the successes and challenges facing the Bolivian System
of Agricultural Technology (SIBTA). Limited access to patented technologies has not
been identified as an impediment to SIBTAs work. SIBTAs main strength is that it is
designed to involve the private sector in alleviating rural poverty by focusing on the needs
of small farmers; however, it lacks the strategic guidance and priority setting to make it a
valuable tool for the production of biotechnology research in the long-term. This is
36



problematic for the sustainable development of new biotechnologies for pro-poor uses as
the direction and intensity of public investments in biotechnology will play a critical role
in how benefits reach small producers
111
[g]governments have a significant role to play in identifying which areas
of innovative research can and should be promotedgovernments also have a
role in moving inventions from the theoretical level to the applied level
(government-funded research drives a good deal of this movement) and in
providing incentives to encourage the development of new products and
processes arising out of applied research (for example, forms of intellectual
property). But as research moves further from basic research toward product
development, the governments role in directing this process diminishes. For the
most part, the market distributes investment resources much more efficiently than
the government.
and how efficiently technology is diffused
from the basic level to commercialization:
112

(Emphasis added)
Latin America is a natural environment for the development of new agricultural
biotechnologies; however, research is characterized by massive levels of underinvestment
in the majority of developing countries.
113
The continued development of agricultural
biotechnologies can be a valuable tool in alleviating food insecurity and promoting
sustainable development growth. At the same time, this growth potential in agricultural
biotechnology is also subject to to increasing demands in terms of: food security,
socioeconomic development, promotion of conservation, diversification and sustainable
use of plant genetic resources as basic inputs for future agriculture.
114

111
Taxler supra note 12
This is a major
issue as food insecurity in the majority of the region is itself a consequence of poor social,
112
see Finston II supra note 52 at 198
113
Investment in agricultural biotechnology is less than 1% of GDP for most developing countries,
compared with over 2% for developed countries. see IFPRI. Advancing Knowledge and Innovation in
Food and Agriculture. Washington, D.C.: International Food Policy Research Institute, 2007 [IFPRI].
114
Avila, Teresa. "Management of the Appropriate Agricultural Biotechnology for Small Producers:
Bolivia Case Study." Electronic J ournal of Biotechnology 9.1 (2006) . March 7 2010
<http://www.ejbiotechnology.info/content/vol9/issue1/full/4/4.pdf>[Avila] at 2
37



economic and technological policy decisions.
115
Current biotechnology policies have failed to attract sufficient private sector
investment. Understandably, private companies will be reluctant to invest in research,
technology and human capital unless they see clear policies that welcome their
investment and address their concerns.
As such, one thing is clear: government
policies will play a significant role in providing the basic environment in which
biotechnological innovation can occur strengthening higher education systems,
providing incentives for small businesses and developing the appropriate mechanisms to
commercialize research.
116
In general and across the region, the delivery of
new agricultural technologies has been relatively unsuccessful thus far.
117
More
importantly, agricultural biotechnology has not impacted the poor small farmers who are
responsible for the majority of agricultural production. While the failure of small farmers
to improve agricultural productivity and participation in market formation can be
attributed to many factors, it is well settled that the lack of access to new developments in
agricultural biotechnologies has limited their productive and innovative capabilities.
118

For the average small-farmer, access to new technologies is restricted by two things: an
underdeveloped agricultural R&D infrastructure and a weak agricultural industry
characterized by a lack of support for R&D investment and infant seed markets.
119
There is a range of capacity for basic and applied biotechnological research across
Latin America. Countries such as Mexico, Brazil, Argentina and Costa Rica have been
relatively successful in generating and commercializing new agricultural research.


115
see Roca, supra note 7
116
see Taxler supra note 12 at 52
117
Ibid Taxler
118
see Hartwich supra note 10 at 9
119
see Taxler supra note 12 at 52
38



However, for most other countries, particularly those in Central America,
biotechnological research suffers from three primary constraints. First, any research
capacity that does exist is limited by a restrictive funding environment.
120
Across Latin
America, private R&D funding has decreased due to underdeveloped markets and
comprises no more than 15% of total public and private R&D expenditures.
121
By
contrast, developed countries such as Canada, the U.S, France and J apan invest
approximately 1% - 3.5% in R&D capacity.
122
Investments in Latin America that are
made are funded primarily through national science and technology councils, with
support varying from country to country.
123
Generally, public sector research is not
adequately supported by government policies concerning the key elements required for
biotechnological innovation i.e. project funding and coherent biosafety legislation.
124
In
many countries, including Bolivia, this is due to a lack of strategic vision in prioritizing
the formulation of research and managing the different components in the information-
development-commercialization R&D pipeline.
125
Until recently, many policymakers
have yet to take a concerted, firm policy position on biotechnology.
126

120
Taxler supra note 12 at 7
This is a very
121
Private investment in Latin American biotechnology lags behind other major biotechnology centers,
such as the United States, Canada and Australia, where private funding has actually increased significantly.
Investment in Latin America was only 0.59% of IGP in research and development, with Brazil showing the
highest levels. Where large potential markets exist in Brazil or Argentina, this is not such an issue. Chile
and Cuba also ranked among the highest investors. see Taxler supra note 12 at 34. see also Roca, supra
note 7
122
see Roca supra note 7 at 11
123
It was reported that 62% of the scientific and technological activities in LAC were funded through the
states national science and technology councils, 28% by companies, and 9% by universities; funding
coming from external sources was approximately 1%. In 1999, the Brazilian state funding was 0.86% of
IGP, whereas lesser developed like Bolivia and Peru found themselves towards the bottom. see Dellacha, J .,
G. Lionel, and J . Ahumada. La Biotecnologa En Amrica Latina: Panorama Al Ao 2002. Ottawa, Canada:
CamBioTec, 2003. [Dellacha]
124
see Taxler supra note 12
125
Ibid Taxler at 48
126
The process for setting innovation policy is that top economists and scientists present policy options to
policymakers and research funding agencies, who then will set policy with the help of consulting firms or
in-house talent. see Taxler supra note 12
39



significant issue in biotechnological innovation as products have a long research cycle
and require sustained investments over the life of the project.
127
For the majority of the
region, including Bolivia, marshalling the technical expertise to even implement
functional biosafety and patenting systems will require a sustained effort over a period of
years, and a significant commitment of new financial resources.
128
Secondly, the basic-
level research coming out of the public sector is not finding its way to private companies
that can commercialize it.
129
Most of the biotechnology products sold in Latin America
are transgenic seeds, followed by seedlings and the seeds of selected, virus-free crops.
130

Brazil, Argentina and Mexico have been quite successful at attracting investment from
the private sector; but for others, agricultural seed markets remain small and
underdeveloped.
131
Third, there is a general weakness in the region in terms of both the
quantity and quality of biotechnology researchers.
132
The majority of agricultural
biotechnology research is concentrated in only a few countries, namely Brazil, Argentina
and Mexico.
133

127
The Rockefeller Foundations International Rice Biotechnology Program, aimed at introducing
transgenic rice into China, took 15 years and $100 million in investments before it reached the market, due
to biosafety regulations and complex negotiations with IP rights to several genes and processes. While
human capital and technology transfer were both increased, the direct impact of the technology remains
limited. See Taxler supra note 12 at 31; See Horstkotte-Wesseler, Gesa. "Agricultural Biotechnology and
the Poor: The Role of Development Assistance Agencies." Agricultural Biotechnology in Developing
Countries: Towards Optimizing the Benefits for the Poor. Ed. Anatole Krattiger and Matin Qaim.
Dordrecth, Netherlands: Kluwer Academic Publishers, 2000.
In many cases, researchers are merely biologists or agronomists and not
specialized in the scientific disciplines required for applied biotechnology research such
128
Taxler supra note 112
129
see Taxler supra note 12
130
see Avila supra note 112 at 3
131
Ibid Taxler supra note 12 at 28
132
see Food and Agriculture Organization of the United Nations. "FAOSTAT - Food Security." FAO. 2010.
FAO. <http://faostat.fao.org/site/562/default.aspx>.
[FAO study]; see also Roca supra note 7
133
see Hartwich supra note 10 at 6
40



as molecular genetics, protein engineering and bioinformatics.
134
Addressing this lack of
research capacity means that the top priority of a government wishing to develop
biotechnology must make its first priority to strengthen its core policy-forming
capacities.
135
2.1 The Brazilian Biotechnology Innovation Model


Brazil has demonstrated tremendous vision and leadership in designing the
appropriate policy environment not only for biotechnology, but also for many industries
ranging from aeronautics to automotive assembly to agriculture. Beginning in the 1950s,
Brazil instituted an aggressive science and technology policy that encouraged economic
development alongside an import-substitution development policy.
136
In 1982, Brazil
created the national Council for Scientific and Technological Development, a central
office designed to promote innovation and public universities and encourage technology
transfer into the private sector.
137
Since the establishment of the Council for Scientific
and Technological Development, more than twelve Technological Innovation Centers
have been established at Brazilian universities to encourage public-private cooperation.
138

134
The FAO also found that of the limited number available, about 40% were postgraduates and only about
10% had doctoral degrees. see FAO study, supra note 131

As a result, public sector institutions have been patenting their research at a high rate with
very noticeable improvements: for example, the top 7 Brazilian universities, plus the
members of the Brazilian Agricultural Research Cooperation, received 153 patents in
135
Taxler supra note 12 at 52
136
Graff, Gregory. "Echoes of Bayh-Dole? A Survey of IP and Technology Transfer Policies in Emerging
and Developing Economies." Intellectual Property Management in Health and Agricultural Innovation: A
Handbook of Best Practices . Ed. Anatole Krattiger, R. T. Mahoney, and L. Nelsen. Mill Street, Oxford,
U.K.: MIHR (Centre for the Management of Intellectual Property in Health Research and Development)
and PIPPRA (Public Intellectual Property Resource for Agriculture), 2007 [Graff] at 174
137
Ibid at 174
138
Ibid at 174
41



2003 alone.
139
By contrast, there were just 264 patents taken by the same group from
1980 to 1995.
140
No other country in the region has the comparable scientific depth,
research capacity and market size.
141
Brazil also ranks second in Latin America in terms
of GMO field-tests conducted by private companies.
142
Crucial to this success has been the governments emphasis on active, state-
supported participation in the basic scientific research that drives innovation.

143
Brazils
National Biotechnology Policy has demonstrated that a national government committed to
biotechnological innovation can be the most important factor in creating a collaborative
research environment. Policies place a clear emphasis on creating the necessary
conditions for the adoption of biotechnology.
144
Our objective is to take up a leadership position in [the biotechnology field]
similar to that already assumed by the biofuel area. This has become a
partnership of indisputable success between the scientific community and the
efficiency of the Brazilian entrepreneurial society. Our greatest challenge, my
friends, is to repeat this successful collaboration in other areas of the economy
and production. We must begin to produce affordable drugs and vaccines,
biodegradable plastic, develop more effective and less polluting industrial
enzymes, more nutritious food, medicines and cosmetics from our bio-diverse
environment and techniques of environment recovery. In addition, in the
future, we must focus on biotechnology by investing in DNA sequencing
research, the neurosciences, stem cell research, nano-biotechnology, [and]
biopharmaceuticals
In 2008, Brazil launched its
Biotechnology Development Policy, where President da Silva announced a concerted
national effort to make Brazil into a leading centre of the biotechnology industry:
145

139
see Graff supra note 135 at 175
(emphasis added)
140
Ibid at 175
141
see Taxler supra note 12 at 48
142
GMO field tests are a useful proxy indicator for institutional research capacity and market potential for
agricultural biotechnology. see Taxler supra note 12 at 26
143
Ibid Taxler at 132
144
see Octaviani supra note 96 at 5
145
Presidency of the Republic - Press Secretary. "Discurso na cerimnia de lanamento da Poltica de
Biotecnologia, Palcio do Planalto." Presidency of the Republic - Press Secretary. 2010.
<http://www.info.planalto.gov.br/>. [Discurso]
42



Brazils National Biotechnology Policy reflects the Brazilian states belief that
collaborative partnerships in scientific research and development can yield benefits for
business and for society as a whole.
146
The national biotechnology policy is led by two
institutions representing both the public and private sector: the National Biotechnology
Committee, comprised of researchers, government officials and leaders of civil society
(including indigenous groups); and the Biotechnology Competition Forum, which
represents the interests of the private sector. The Brazilian government is committed to
funding public research institutions, contributing USD $3.5 billion to support biotech
research over the next ten years.
147
The state is similarly committed to contributing
funding to biotechnology research and to crafting legislation that promotes public-sector
innovation in pharmaceuticals, forestry, energy and agriculture.
148
Nowhere has the National Biotechnology Policy been more successful than in the
State of Sao Paulo, where The State of Sao Paulo Research Foundation (FAPESP) is the
government institution responsible for supporting Brazils Science and Technology policy
in the region.
This increased public
funding has been met with positive response from the private sector, which has also
contributed approximately USD $2 billion.
149
The idea behind FAPESP is the coordination of efficient, independent
and flexible decision-making and funding priorities through a single agency.
150

146
see Octaviani, supra note 96 at 132
FAPESP
147
Ibid at 134
148
Ibid at 130
149
Sao Paulo is an academic research giant in Brazil, responsible for 53% of Brazils scientific output and
home to many of the countrys top research institutes Sao Paulo produces more scientific papers than any
other country in Latin America (except for Brazil itself)
150
One of FAPESPs main goals is to broaden and strength the diversification of the research system in
Sao Paulo by supporting new research centers and focuses. see Wagner, Vilegas. Brazilian Biodiversity
Research: A Promising Future. Sao Paulo, Brazil: The State of Sao Paulo Research Foundation (BIOTA-
FAPESP) <http://www.fapesp.br/publicacoes/nih_biotas.pdf.>. [Wagner]; see also FAPESP. "The State of
43



is publicly funded by the State (enshrined in the State Constitution). FAPESP is one of
the main funding agencies for scientific and technological research; in 2008, it invested
$388 million in fellowships and research grants alone
151
and a further $31 million
towards the commercial application of research in 2008.
152
The Brazilian innovation model emphasizes the development of scientific capacity
and human capital by forming dedicated linkages with the private sector. The majority of
government funding for agricultural biotechnology in Brazil has been devoted to projects
that develop research links and training initiatives between the public and private
sectors.

153
At the urging of the scientific community, not only does FAPESP emphasize
public research to advance knowledge production, but also jointly funds specific research
projects with private companies, resulting in more commercially usable research,
smoother technology transfer and risk-spreading.
154

Sao Paulo Research Foundation (FAPESP)." FAPESP. <
The Science and Technology
Promotion Program, (funded with public money ($100 million, 2010) and directed by the
Ministry for Science and Technology) provides grants for scientific and technological
research in R&D for public and private institutions and supports risk sharing initiatives
within the private sector. Similarly, the Science and Technology Reform Support
program, (also funded with public money ($360 million) and directed by the Ministry of
Science and Technology) is designed to improve the quality of advanced research and
http://www.fapesp.br/en/materia/1/the-
institution/fapesp.htm>. [FAPESP]
151
see Wagner supra note 149
152
FEPASPs allotted funding also guarantees efficiency and low-cost operation: per the State Constitution
that created FEPASP, administration costs cannot exceed 5% of its research investments. see---.
Technological Innovation Prospectus. Sao Paulo, Brazil: FAPESP, 2004. [Technological Innovation]; see
also FAPESP supra note 149.
153
Taxler supra note 12 at 18.
154
Such projects are developed through 11 FAPESP programs dedicated solely to Technological innovation
J oint projects were successful mainly due to the requirement that private companies demonstrate real
interest in transferring the technology that was being developed by the project. see Technological
Innovation supra note 151 at 2
44



training and promote collaborative R&D between public and private institutions.
155
Two
of the programs coming out of these policies - the Partnership for Technological
Innovation Program (PITE) and the Technological Innovation in Small Business Program
(PIPE) have been very successful in commercializing new projects and encouraging
innovation in biotechnology in SME enterprises: for example, over 9 years, PITE has
approved over 72 projects and invested $27 million USD, with half of the funds coming
from its network of 55 companies.
156
PIPE, which supports small businesses working on
scientific and technology projects with a defined commercial application,
157
is designed
to: create the conditions to enhance the research systems contribution to economic and
social development; stimulate a significant increase in private investment in technological
research; and, enable small businesses to associate with researchers in the academic
environment on Technological Innovation projects. Through joint collaborations, PIPE
has successfully brought to market projects ranging from biological pest control to early
cancer detection.
158
FAPESP also has a program to match public sector projects with
businesses that might bring their products to market.
159

155
Clive, J ames. Progressing Public-Private Partnerships in International Agricultural Research and
Development. Vol. 4. Ithaca, NY: The International Agricultural Service for the Acquisition of Agribiotech
Applications, 1997.
FAPESP has links with research
funding agencies and universities in major countries all over the world, including Canada,
Germany, the United States and France. PIPE supports the SMEs that are so important to
driving innovation by providing access to venture capital through agreements with
156
see Technological Innovation supra note 151 at 2
157
Ibid; see also FAPESP website, online at http://www.fapesp.br/en/materia/299/pipe/technological-
innovation-in-small-businesses-aims-and-objectives.htm
158
see Technological Innovation supra note 151
159
This is the Partnership for Technological Innovation (PITE) program. see FEPASP website, accessible
online at http://www.fapesp.br/en/materia/300/pite/partnership-for-technological-innovation-objectives.htm
45



foreign venture capital firms.
160
FAPESP also supports biodiversity research through
BIOTA-FAPESP. Through open, collaborative and decentralized research methods, such
as Biota Noetropica - an open-access electronic peer reviewed journal to encourage
collaboration on original biodiversity research
161
At this point in time, the Brazilian biotechnology policy environment is
sufficiently advanced such that policies can also be directed specifically at increasing the
capacity for IP management. For example, in 2000, FAPESP recognized the need to
manage the IP resulting from the research it financed
- BIOTA-FAPESP is leading the way in
research on biotechnological issues including agrochemical pesticides and conservation
and sustainable use of biodiversity. The direction of the funded research is managed by
scientists and research is also peer-reviewed to maintain scientific standards.
162
and created the Program for
Support for Intellectual Property (PAIP) (supported by the Nucleus for the Patenting and
Licensing of Technology) which advises researchers on IP matters, including patent
defense and licensing.
163
Two projects in particular stand out as prototypical examples of how Brazils
strategic policy guidance was instrumental in generating useable commercializable
research and strengthening knowledge capacity. In 1997, the Organization for Nucleotide
Sequencing and Analysis (OSNA) launched the Genome Project at the University of Sao
The objective here is to train and advise researchers on IP
management strategies leading to development in commercial markets.

160
Companies enrolled in PIPE submit scientific reports that outline their activities for a specific phase of
the research cycle. Funding is provided jointly through the Program to Support Research in Small
Businesses, a partnership between FAPESP and the Financing Agency for Studies and Projects and the
venture capital firm. see FAPESP website at http://www.fapesp.br/en/materia/5415/agreements/fapesp-
imprimatur-capital.htm
161
see Wager supra note 149 at 4
162
see State of Sao Paulo Research Foundation. "Nucleus for Patenting and Licensing of Technology."
2010. <http://www.fapesp.br/en/materia/298/papi-nuplitec/program-for-the-support-of-intellectual-
property-nucleus-for-the-patenting-and-licensing-of-technology-nuplitec-.htm>. [Nuplitec]
163
see Technological Innovation supra note 151
46



Paulo. Supported by the FAPESP, the project had two primary goals: to discover new
biotechnological methods for improving local agriculture
164
and to increase the
understanding and research capacity of the university in the field of genomics.
165
R&D
took place under a highly decentralized, ABS model with open source principles that
allowed for the simultaneous coordination of multiple laboratories. By distributing
project funding upfront, there were the necessary incentives for universities with little or
no previous experience in genome sequencing to train researchers and scientists and join
the network. The Genome Project began as a network of 30 university laboratories that
collaborated on important agricultural research.
166
The decentralized nature of the system
meant that public institutions could leverage their talents to participate in a project that
they could not possibly have completed on their own,
167
The union of many laboratories developing their own broad-scope research
with a single scientific objective was an important learning factor for
generating expertise in refined molecular and genomic biology techniques.
This research organization encourages the spreading of research throughout the
whole State, which would not have happened if a single center had been set
up.
allowing for synergies to arise
that would not have been possible if the Genome Project was coordinated by a single
research institution. As described by Brazilian innovation policy analyst Maria Ester Dal
Poz:
168



164
see Octaviani supra note 96 at 133
165
see Octaviani, supra note 96 at 133; see also Mertl, Melissa. "Lessons from Brazils Genome Project Go
Global." SciDev Net (2010): May 28 2010. <http://www.scidev.net/en/news/lessons-from-brazils-genome-
project-go-global.html>. [Mertl]
166
Laboratories would receive a set payment under contract based on each base pair of the genetic
sequence, with up to 70% of the payment payable upfront, freeing up labs to use the money as they saw fit,
with additional payment of 30% made upon efficient completion of the research. see Octaviani supra note
96 at 133; see also
---. "OSNA - Conditions for Belonging to the Network." FAPESP. 2010.
<http://watson.fapesp.br/Conditio.htm>. [OSNA]
167
Ibid OSNA
168
Dal Poz, Maria. "Da Dupla Tripla Hlice: O Projeto Genome Xylella." Masters of GeoSciences
Universidade Estadual De Campinas, 2000[Dal Poz] at 28-29
47



The decentralized organization of the program made it easier for innovation to occur.
The use of shared digital depositories to store research reduced transaction costs and
improved time-to-market times.
169
In just two years after its launch, OSNA finished
mapping the worlds first complete genetic sequence of a plant pathogen, leading to the
announcement that the project would pursue two new goals: the sequencing of 50,000
sugar cane genes and investigating their resistance to diseases and changing climatic
conditions.
170
Also, technology could be more easily licensed out to the private sector for
increased commercialization opportunities, resulting in the birth of two new bio-
informatics companies founded by researchers and scientists who worked on the Genome
Project. Crucially, the project strengthened Brazils research capacity and human capital
foundation. From its inception in 1997 to 2002, more than 450 researchers had training
and experience in DNA sequencing.
171
Brazil also has the highest number of scientists
working in biotechnology and the highest number of PhDs and MSCs.
172
As such, it
comes as no surprise that Brazilian scientists are also responsible for the lions share of
knowledge creation in the LAC region, as evidenced by the sheer volume of its
biotechnology publications.
173
Similarly, the successful development and diffusion of zero tillage (ZT)
technology in Brazil is another practical demonstration of the types of policies that


169
Ibid Dal Poz at 28-29
170
Ibid
171
Camargo, Anamaria, and Andrew Simpson. "Collaborative Research Networks Work." J ournal of
Clinical Investigation 112.4 (2003): 468-71.
172
see Taxler supra note 12
173
In 1991, Brazil published 175 biotech papers, almost double its near rival, Mexico (98). By 1999, Brazil
was publishing 550 biotechnology papers. No other Latin American country has seen this increase in
publication volume. This additional research and management capacity helped lay the groundwork for the
national Biotechnology Development Policy of 2007. see Taxler supra note 12
48



encourage innovation.
174
While ZT technology is not as sophisticated and scientifically
granular as biotechnology, the policies behind the innovation process are still instructive
to the key components of a collaborative, horizontal innovation system. ZT is a highly
complex technology developed by networks of farmers, public research institutions, input
suppliers, government agencies and private firms that co-evolved together in the
technology development process.
175
Notably, the high adoption rates of ZT technology
were due to a decentralized, open and collaborative innovation process: an informal,
participatory and multidisciplinary research policy that encouraged strong collaborative
engagement between equipment manufacturers, farmers and research centers and
eventually led to major changes in farming practices across the region.
176
These
collaborative networks had no central decision making body and self-organized through
the actions of their own members.
177
Information exchanges and joint research projects
between different stakeholders were facilitated through formal and informal networks.
178
2.2 The Bolivian Biotechnology Innovation Model


Agricultural biotechnology research in Bolivia is concentrated between the basic
and applied stages, though most of the university-generated research is unrelated to
private sector research projects and even to the needs of small farmers.
179

174
Zero Tillage has had the most impact than any other single piece of technology on Brazil over the last 50
years and has increased sustainable farming practices, reduced farmer costs for herbicides and insecticides
and reduced the effects of soil erosion. see Ekboir, J avier M. "Research and Technology Policy in
Innovation Systems: Zero Tillage in Brazil." Elsevier Research Policy 32 (2002): 573-86 [Ekboir]
Any research
that is supported by private foundations or companies is based more on vertically
175
Ibid Ekboir supra note 173 at 578
176
Ibid at 578-580
177
Farmers formed zero tillage societies that were funded by public and private institutions and these
groups were crucial to filling gaps in research. Smaller teams were formed to address specific research
issues and individual researchers from universities also participated by contributing research or private
funding. see Ekboir supra note 173 at 581
178
Ekboir supra note 173 at 584
179
see Avila supra note 113
49



integrated research patterns supported by conventional public institution research
methods.
180
Agricultural biotechnology development in Bolivia has been constrained due
to several factors, notably a lack of funding, difficulty accessing markets, a lack of
research dedicated to targeted farmer needs and limited cooperation between public and
private actors.
181
Most of these factors result from the lack of strategic direction from
state innovation policies.
182
There is inadequate knowledge and expertise amongst policy
makers regarding how to best direct the innovation process, leading to a restricted
information and knowledge environment.
183
Very simply, the lack of top-down strategic
direction makes it difficult to attract private sector investment, develop markets and
encourage competition among small biotechnology enterprises that are so crucial to
innovation and growth. Until very recently, science and technology policies left over
from the era of structural adjustment and liberalization have hampered the rate of
technological absorption.
184
With low amounts of cash to spend on basic
biotechnological research, funding and priority setting functions, once coordinated by the
national government, were left to private industry.
185
In this policy environment with
little funding for science and technology research, the assumption was that the private
sector would procure any research and technology that was fit to be commercialized.
186

180
Ibid Avila

181
see Hartwich at 10
182
Ibid
183
Ibid
184
Ibid Hartwich supra note 10 at 7
185
A US$21 million loan the country received in 1991 from the World Bank was earmarked for
strengthening the countrys agricultural research capacity, but after the depletion of those funds the
government could not identify sufficient funding sources to sustain the former level of activities.
Underfunding and management problems caused by political intrusion, patronage and the consequent loss
of motivation of staff led to further deterioration. Finally the inability to prove that investments were
leading to the adoption of improved practices among farmers invoked the closure of IBTA in 1997. see
Hartwich supra note 10 at 5, 40
186
see Hartwich supra note 10 at 5
50



Biotechnology in Bolivia is managed through several agencies: the Ministry of
Farmer and Agricultural Affairs (MACA) by way of the Technological Development
Board of the Vice Ministry of Agriculture, Livestock and Fishing; and, through the
Ministry of Sustainable Development by way of the Vice-Ministry of Natural Resources
and Environment and the General Biodiversity Board.
187
In the past, the state-run
Bolivian Institute of Agricultural Technology (IBTA) was charged with the development
of agricultural technologies, even though IBTAs focus was mainly on training scientists,
researchers and farmers. As IBTA gradually lost funding and eventually closed its doors,
Bolivias capacity to generate and absorb agricultural technology was reduced to an
ineffective level. Bolivia has attempted to strengthen its innovation system through a new
decentralized agricultural research institution called the Bolivian System of Agricultural
Technology (SIBTA).
188
Similar to FAPESP in Brazil, the main function of SIBTA is to
prioritize R&D and then allocate funds, knowledge and technology accordingly.
Specifically, SIBTAs objectives are to: alleviate rural poverty by increasing producer
incomes and ensuring food security for the rural population; increase the sectors
competitiveness by providing modern and efficient technology packages; contribute to the
sustainable use of natural resources by implementing innovation projects corresponding
to national strategies; and assist in modernizing the institutional association of rural
producers so as to build a base for the process of demand-oriented technological
innovation.
189

187
The Ministry of Sustainable Development is the competent local authority on issues regarding biosafety
and access to genetic resources and has supported several activities to strengthen biotechnology and
biosafety in the country. see Avila supra note 113 at 5

188
see Hartwich supra note 10
189
see Hartwich supra note 10
51



SIBTA is designed as a demand-driven research system, although a few projects
also focus on research that is of national interest.
190
Most of the members of SIBTAs
four foundations
191
approximately 70% - are farmer unions and producer organizations;
public institutions, such as local municipalities and public universities, comprise the other
30%.
192
The direction of research is prioritized based on feedback in the form of project
profiles from farmers organizations.
193
Project profiles are then put out for tender to
either public or private service providers.
194
SIBTA has three main mechanisms through
which service providers operate: Applied Technological Innovation Projects (PITAs),
where SIBTAs four regional foundations (FDTAs) solicit bids from producers who
formed an alliance with knowledge providers to submit joint proposals;
195
the National
Strategic Innovation Projects (PIEN), devoted to strategic research areas;
196
and, the
genetic resources program (SINARGEAA) where universities and other public
institutions carry out basic research on genetic resources.
197
Projects are funded through
a competitive fund furnished by the Bolivian government, the Inter-American
Development Bank and major international donor agencies.
198

190
see J ansen, Heinz-Gerhard. "The Bolivian System for Agricultural Technology (SIBTA). Services for
Rural Development." Rural Development News 6 (2006). [Jansen]
There is a mechanism
designed to encourage participation by the private sector as SIBTA projects require that
private service providers cover 15% of project financing.
191
SIBTA distributes funding, research and technology into four regional foundations FDTAs -
representing the High Andes Plains, Valleys, Humid Tropics and Chaco. Setting global priorities for
research, as well as monitoring and evaluation, are delegated to central government units in the Ministry of
Agriculture. see Hartwich supra note 10; see also Jansen supra note 189
192
Ibid J ansen
193
see Hartwich supra note 10 at 44. see also Jansen at 30
194
Ibid J ansen supra at 30
195
see Hartwhich, Frank, and Heinz-Gerhard J ansen. The Role of Government in Agricultural Innovation:
Lessons Learned from Bolivia. Vol. 8. Washington, D.C.: International Food Policy Research Institute.
[Hartwich Gerhard] p. 4
196
Ibid Hartwich Gerhard
197
Ibid Hartwich and Gerhard
198
see Jensen supra note 189
52



However, despite having received mostly positive feedback from farmers, there
have also been several criticisms of SIBTA from expert commentators and academics. A
first criticism is that its funding structure ultimately results in a restrictive funding
environment that must satisfy the conditions set by international donors and development
banks. For example, the IDB provided Bolivia with funds in such a complicated
arrangement that IDB funding rules essentially became part of SIBTAs funding rules.
This has complicated SIBTAs relationship with its donors. Moreover, the way in which
SIBTA incorporates the private sector adds to these complications. SIBTA has charged
the private sector with two roles implementing the system and generating income for
farmers.
199
Experiences by international donor agencies have illustrated that the private
sector is biased towards pleasing the government first, and then generating income for
farmers, second.
200
This creates an uncertain investment and market climate for private
donors if a newly elected government conceives of SIBTA in a certain way, private
actors must also conform to this vision accordingly. In short, there is no concrete promise
of sustainable, market-driven solutions. Also, because the regional foundations FDTAs
are at the center of the decision making and priority-setting process, private actors end
up having little influence on SIBTAs activities.
201
Another issue is that the demand-driven nature of the system is limited by low
levels of education and technological sophistication among farmers. There are two
problems here. First, farmers might not know what the best solutions are: there was one
instance where potato farmers demanded that SIBTA provide them with tractors so they


199
Calvo, J ose. Market Access and Poverty Alleviation (MAPA): USAID Final Report on Bolivia. Ed.
United States Agency for International Development (USAID). Vol. 806. Cochabamba, Bolivia: Chemonics
Consortium, 2005. [Calvo]
200
Ibid Calvo at 70
201
Ibid Hartwich and Gerhard supra note 194 at 7
53



would not have to hand-cultivate their crop, where instead the issue ought to have been
identified as the need for methods to improve farmer incomes.
202
This means that
accurately detecting and targeting the specific challenges facing small farmers can be
difficult
203
and fuels the criticism that the Applied Technological Innovation Projects
(PITA) foundation, through which projects are coordinated, can be too responsive to the
demands of small farmers.
204
Simply being responsive to the demands of farmers does
not necessarily produce the research and technology that will benefit them the most. This
is especially so in the development of agricultural biotechnologies where product
development cycles are measured in years, if not decades. SIBTA has been criticized for
being so responsive to farmer demands that it has neglected the identification of strategic
problems and opportunities.
205
The criticism of being too responsive to long-term
farmer needs has also been extended to higher government officials.
206
The second
problem with relying on farmers for research priorities is simply that demands for new
research and product should be coming from the market.
207
SIBTAs management structure is also heavily bureaucratic and this limits the
strategic coordination of research priorities. The system is managed by several agencies,
including the government, foundations for agricultural and forestry technological
development, international donors, technology and knowledge providers and local and
regional governments.
This is difficult, however,
given the level of rural poverty and immature markets in Bolivia.
208

202
see Calvo supra note 198 at 68
This has created a large bureaucracy that results in a time-lag
203
see Hartwich supra note 10 at 45
204
see Avila supra note 113
205
Hartwich and Gerhard supra note 194 at 7
206
Ibid
207
Calvo supra note 198 at 68
208
Hartwich supra note 10 at 41-44
54



between project design and implementation; for early projects, there was a lag of nearly
12 months from the identification of the farmer demand to the initial stages of project
implementation.
209
Both expert commentators and USAIDs experience with SIBTA also
illustrate that SIBTA also has a short institutional memory. From 2000-2005, there were
nine ministers of agriculture and even more turnover among SIBTAs rank-and-file
staff
210
. New people need time to understand the system; sometimes, they might bring
with them their own agendas. Moreover, SIBTA was created with an executive decree,
meaning that it could also be undone by a rival political party.
211
Until now, the
solidarity and vision between the members of the CAS (Comit de Acompanamiento al
SIBTA) has been the glue holding SIBTA together.
212
This contributes to inefficiencies
in long-term strategic priority setting for research which has been identified by SIBTA
stakeholders as a key concern regarding the systems governance.
213
For example, even
though the concept was for the system to be largely demand-driven, the idea was that
research priorities would also be set by the Ministry of Agriculture, which has had a
strong responsibility in strategic orientation and priority setting for SIBTA.
214
The CAS
is responsible for advising the minister of agriculture.
215
However, a 2006 IFPRI study
on SIBTAs organizational structure revealed that the lack of government participation in
priority-setting was a key issue in the effectiveness of SIBTA.
216

209
Jansen supra note 189
While the Ministry of
210
Calvo supra note 198
211
Ibid
212
see Calvo supra note 198
213
see Hartwich and Gerhard supra note 194 at 6
214
see Hartwich supra note 10 at 38
215
The CAS is composed of representatives from international donors and aid agencies from the United
States, J apan, Denmark the IICA/FAO and the European Union. see Calvo supra note 198
216
This is based on a study of SIBTAs organizational structure conducted by the IFPRI between J une and
November 2006. 54 key actors in organizations operating under SIBTA were asked for their feedback. see
Hartwich and Gerhard supra note194 at 6
55



Agriculture was involved in setting up the system, decisions regarding project selection
and implementation were left to the four regional foundations which are also heavily
influenced by donor agendas.
217
Both government unitsthe UTS and the UCPSAwere not comfortable with
delegating responsibilities to lower hierarchies or nongovernmental actors. For
example, the UTS set priorities for research and innovation on a national level
and was at times unwilling to accept that the foundations prioritized other
subsectors or commodities on the regional level. UCPSA was reluctant to
delegate financial responsibilities to the administrative departments of the
foundations. As a consequence, the government became wrapped up in
minutiae, impeding its involvement in setting policies of wider strategic
importance.
Decision-making functions in SIBTA were not
sufficiently delegated by the government, resulting in the exclusion of key public actors
from the priority-setting process:
218


In an effective R&D system, a crucial part of research management is prioritizing
among projects and ideas.
219
Participants in a collaborative network are able to make
informed decisions with respect to where to allocate resources. The Brazilian innovation
system leverages several core competencies of collaborative models at three critical
junctures of the R&D value chain: coordination between universities and public funding
agencies; a decentralized and democratic organization of production; and, the virtual
publication of data over the Internet.
220

217
Frank Hartwich and J ansen Heinz-Gerhard comment that [i]n the nation and regional decision-making
process, SIBTAs bylaws and donor directives have often played a more important role than has dialogue
with beneficiaries see Hartwich and Gerhard supra note 194 at 6
Both in the case of the Genome Project at OSNA
as well as in the development of zero-tillage technology, Brazilian institutions were
autonomous and decentralized. The Genome Project at the University of Sao Paolo is a
concrete example of how State-supported innovation enhanced technology transfer and
218
see Hartwich and Gerhard supra note 194 at 7
219
see open source biotechnology supra note 25 at 285-286
220
see Octaviani supra note 96 at 136
56



product development through low-cost integration. It is also a clear illustration of the
importance of state participation as the main catalyst in generating socially beneficial
technologies and knowledge. For example, coordination between universities and public
funding agencies has been facilitated by the open-source style contracts that governed
membership into the research group. A prospective laboratory would enter into a contract
with the Sao Paulo State Foundation for Research Assistance under which,
sequencing laboratories received DNA material, equipment, and training. In
return, they were obligated to share sequence specific DNA fragmentsassigned by a
central research coordinatorat a prescribed standard of quality, within one year. The
resulting mapped information would be fed back into a common repository associated
with the project, which could then be accessed by any interested party. As soon as a
laboratory successfully delivered a sequence, it could apply for a second assignment.
221


The informal nature of OSNA allowed participants to maintain flexibility as to
which projects it could direct its energies. As such, they were able to develop effective
collaborative partnerships with international research centers and farmers organizations.
Innovation at this scale would not have been under agricultural biotechnology research
policies that addressed public and private sector needs independently of one another.
Similarly, the policy failures in the development of ZT technology illustrate that, even
where information exchange channels do exist, they will not operate efficiently unless
supported by adequate funding and strategic vision. For example, when public research
took place in separate silos, there was little collaboration between public research
institutions and research did not focus on the activities and needs of other stakeholders.
222

221
see Octaviani supra note 96 at 137

This problem was amplified due to a lack of government funding and incentives as
researchers had to concentrate on producing goods with direct market value, thereby
222
see Ekboir supra note 173 at 583
57



limiting their freedom to operate.
223
Unlike FAPESP, however, SIBTA in Bolivia has not benefitted from its
supposedly decentralized structure and emphasis on the privatization of research and
extension services.
The incentive structures within public research
institutions also did not encourage innovation - promotion in the research networks was
based on seniority and the production of specific research outputs and projects. A similar
problem is observed in agricultural biotechnology where innovation requires risk-taking
and creativity. Tying government funding to very specific commercially driven projects
will not encourage the diversity of ideas to move research forward; rather, incentives and
funding structures should be based on the quality of research instead of specific case-
managed research outputs.
224
The system evinces a government committed to reducing rural
poverty over the long-term, but its focus does not appear to be on the explicit promotion
of scientific research, building knowledge capacity and developing markets that will
generate the private investment the country needs. Therefore, with respect to the
coordination of research priorities across regional and national institutions, SIBTAs
decentralized structure might not be delivering the results policymakers were expecting.
With its current climate of technological innovation, it might not come as a surprise that
there are no biotechnological enterprises making important investments in Bolivia.
225



223
Ibid at 584
224
see Hartwich and Gerhard supra note 194
225
see Avila supra note 112 at 4


58

CHAPTER 3: Lessons Learned from the Innovation Systems in Brazil
and Bolivia

There is a clear consensus among expert commentators that the direction and
intensity of public investments in biotechnology will play a critical role in how benefits
reach small producers
226
[g]overnments have a significant role to play in identifying which areas of
innovative research can and should be promotedgovernments also have a
role in moving inventions from the theoretical level to the applied level
(government-funded research drives a good deal of this movement) and in
providing incentives to encourage the development of new products and
processes arising out of applied research (for example, forms of intellectual
property)
and how efficiently technology is managed and diffused from
the basic level to commercialization:
227


Despite the limited success of a few SIBTA projects, Bolivias innovation model does not
focus on the wider scientific research required for sustained R&D. Countries with
emerging agricultural biotechnology industries should focus on developing research
capacity, linkages with regional and international research institutions and encouraging
market formation before addressing intellectual property issues through collaborative
licensing instruments: policy options for smaller countries should probably focus on
putting in place the proper institutional structures for a safe technology transfer process.
Regional initiatives aimed at facilitating basic capacities, training and lowering the costs
of biosafety and IPR access and management could play a critical role.
228

226
see Taxler supra note 12
For a country
such as Bolivia with limited capacity for biotechnology and whose agricultural research
227
see FinstonII supra note 51 at 198
228
see Roca supra note 7
59



system is predicated on the alleviation of rural poverty, developing these research links is
absolutely crucial. However, there is little evidence that the Bolivian government is
addressing the link between innovation and policies that strengthen research capacity and
create linkages with the relevant institutions conducting research. A 2006 survey of the
plant breeding and biotechnology capacity in Bolivia, completed by J ulio Gabriel at the
PROINPA Foundation (a respected Bolivian non-governmental organization that works
closely with SIBTA), concluded that there are very few researchers with a Ph.D. in plant
breeding and virtually none with expertise in biotechnology.
229
In fact, the highest level
of education for most biotechnology researchers is a B.Sc.
230
Research areas are
concentrated on the development of plant lines and germplasm development, with few
institutions working in biotechnology.
231
The survey also found that research is limited
by a lack of infrastructure; specifically, there is a significant deficiency in laboratories
equipped for work in molecular biology and techniques.
232
The research that is
happening is directed towards conservation, sovereignty and food security and increasing
the competitiveness of the agricultural sector. For example, the technology transfer
activities at PROINPA occur at a basic level, focusing on non-formal adult education,
organizing local farmers committees and ensuring that agricultural research keeps pace
with the needs of farmers.
233

229
Gabriel, J ulio. Final Report on Plant Breeding and Biotechnology Capacity in Bolivia. Ed. PROINPA
Foundation. Food and Agriculture Organization (FAO), 2008. [Gabriel]
The Laboratory of Molecular Biology and Genetic
Engineering at PROINPA was only recently created in August 2003, and is still focusing
230
Ibid Gabriel
231
Ibid Gabriel
232
Ibid Gabriel at 26
233
PROINPA website. Available online at
http://www.proinpa.org/adminweb/link.php?a_search=E&z_idioma=LIKE%2C%27%25%2C%25%27&x_i
dioma=Castellano&z_categoria=LIKE%2C%27%25%2C%25%27&x_categoria=01+Quienes+Somos&z_s
ubcategoria=LIKE%2C%27%25%2C%25%27&x_subcategoria=01.3.3+Tercer+Objetivo&psearch=&Sub
mit=Buscar%A0%28*%29&psearchtype=#. [PROINPA]
60



on training in biotech methods, statistical analysis of genetic data and the detection of
GMOs in food.
234
There is no evidence that biotechnology research is progressing
beyond the basic stage. By contrast, the Brazilian national Biotechnology Policy
explicitly identifies the link between technological biotechnology innovation in biotech
and the strength of human capital. Human capital is fundamental to sustained technology
transfer, which requires a strong base of scientists, researchers and lawyers to acquire and
manage intellectual property and increase research capacity. Once enough scientists,
researchers and administrators have been trained, policy objectives can focus on
leveraging intellectual property management to encourage innovation. This process is
reflected in several principles of Brazils biotechnology policy: to provide scientists and
technicians with the necessary skills in technological management and in strategies for
protecting intellectual property and technology transfer; to harmonize practices for
managing the intellectual property of the federal and state research and development
support agencies so as to facilitate the transfer of the technologies developed by science
and technology institutions to the private sector, while preserving the rights and
remuneration due to such science and technology institutions and, when applicable, to the
supporting agencies; to encourage the development of individual and managerial skills for
the effective use of intellectual property rights.
235

234
Ibid PROINPA supra note 231
Over time, links to international
research centers strengthened Brazils ability to produce high-level research. They were
also instrumental in the training and development of dozens of researchers, scientists and
professionals working in agricultural biotechnology fields. Bolivias failure to join the
new international agricultural research system has also limited its own research and
235
Chamas, Cludia. 2008. Propriedade intellectual e genmica IacominiVanessa (coord.). 2008.
Propriedade intellectual en biotecnologia. Curitiba: J uru. P 87-88 [Chamas]
61



scientific capacity. For example, one might consider the contrast between Bolivia and
Brazil on the level of involvement with the CIMMYT International Maize and
Improvement Center (CIMMYT). Brazil has worked closely with CIMMYT since the
1960s; for example, by pioneering research on maize cytogenetics through joint research
partnerships
236
. EMPRABA has collaborated with CIMMYTs Applied Biotechnology
Center since the early 1990s.
237
Brazil has also sent scientists and researchers to
CIMMYT for training in agricultural research and technology courses; beginning in the
early 1980s as Brazils focus shifted more towards biotechnology research, researchers
received specific genetics and biotechnological training. Bolivia has enjoyed a much
lower level of involvement with CIMMYT. An important consequence of Brazils
involvement with CIMMYT was an increase in knowledge capacity among Brazilian
scientists. Interestingly, though, like Brazil, Bolivia began working with CIMMYT in the
1960s, when CIMMYT agronomists collaborated with Bolivian wheat farmers on a
shuttle breeding program.
238
Only 41 Bolivian visiting scientists and 84 Bolivian trainees
have also passed through CIMMYTs capacity development programs since 1966.
239
In addition to capacity for research and human capital development, two crucial
building blocks are missing from the Bolivian agricultural biotechnology system:

Granted, Bolivias unstable national history might be a good reason for this; however, my
research has uncovered no evidence that Bolivia is involved with CIMMYTs Applied
Biotechnology Center at the present time.

236
Brazil and CIMMYT: a history of Innovation. CIMMYT Publication. May 1998.
<http://www.cimmyt.org/index.php/en/about-us/partnerships/countries?start=10>
[Brazil CIMMYT]
237
Ibid Brazil CIMMYT
238
Boliva and CIMMYT. CIMMYT Publication. Available online at
http://www.cimmyt.org/index.php/en/about-us/partnerships/countries?start=10 [Bolivia CIMMYT]
239
Ibid Bolivia CIMMYT
62



strategic guidance from the state (through the Ministry of Agriculture) in the form of
research priority-setting and a concerted national biotechnology policy. Beyond the small
success SIBTA has had in getting the private sector interested in a system that is designed
to help small farmers, there is little evidence that Bolivia has plans to introduce any type
of incubator-style model that will help re-position public institutions as the progenitor of
biotechnology research. Without such a scheme, it is very likely that private companies
will not find the incentives they require to make sustained, long-term investments in R&D
through partnerships with the public sector. In contrast, Brazil recognized the need to
incorporate both the private and public sectors in its incubator-style innovation system.
Incubator models are crucially important in the development of agricultural
biotechnology technologies that yield a broad social benefit but do not yet provide
sufficient incentives for the private sector to become involved at the initial stage of
R&D.
240
Private companies can contribute their expertise after the initial research has
been made and technologies are ready for further commercialization. Incubator policies
also enhance competition in markets by lowering barriers to entry for smaller firms that
face high R&D costs.
241

240
According to a report on Brazils biotech industries incubated biotech companies account for 35.2% of
the total number operating in Brazil. see Gerais, Minas. Brazil A Wealth of Opportunities for the
Biotech Industry. Brazil: Biominas Foundation, 2008. . [Gerais]
Re-positioning public sector research as an incubator of cutting-
edge R&D upstream of the private sector requires a shift in the collaboration patterns and
strategic policy of SIBTA because as research moves further from basic research toward
product development, the governments role in directing this process diminishes. For the
241
Market entry costs can be lowered by providing alternate sources of biotechnology products or pre-
competitive technologies or research. see Taxler, supra note 12 at 42
63



most part, the market distributes investment resources much more efficiently than the
government.
242
For example, a 1998 comparison undertaken by the International Service for
National Agricultural Research on the biotechnology innovation systems in Mexico,
Kenya, Indonesia and Zimbabwe revealed that all four countries lacked a comprehensive
national biotechnology strategy. The result was an inefficient information-development-
commercialization system where the private sector was incentivized to only focus on
technology that is near the commercialization stages, agricultural research institutes
focused only on the basic stages of biotechnology (due to a lack of human capital and
research capacity) and funding for biotechnology comprised a small proportion compared
to total agricultural research expenditures.

243
conditions for technology transfer acquisition process, including the
regulatory environment necessary for that to take place; that is, a transparent
IPR regime - (which is mandated by the trade agreements that most countries
are signatories of) and an operative biosafety mechanism. Without these
capacities no country will be able to access the benefits of the new
technologies because it is very unlikely that private or public entities able to
offer technological capabilities will enter into a technology transfer agreement,
either because the lack of IPR protection will endanger the likelihood of
recuperating the investment
Similarly, it is possible that Bolivian
agricultural innovation policies are creating an environment that is not entirely conducive
to the formation of public-private partnerships and technology transfer. As a country with
a National Agricultural Research System (NARS) with limited but functional capacities
for basic research (crop breeding) and seed distribution systems, Bolivian policy
objectives should be focused at establishing
244



242
FinstonII supra note 51 at 198
243
Falconi, C. A. "Measuring Agricultural Biotechnology Research Capacity in Four Developing
Countries." AgBioForum 2.3 (1999): 182-188. [Falconi]
244
see Roca supra note 7
64



Brazilian President da Silva has made strong public commitments to strengthening
Brazils biotechnology capacities; these statements are important signals to researchers,
companies and investors, that Brazil welcomes their investments. The psychological
effect of such top-down, public statements cannot be underestimated in terms of attracting
foreign investment and encouraging the development of public-private partnerships.
Recent policy directions from the Bolivian government call for the state to assume control
over the countrys main industries and natural resources.
245
For example, the Morales
administration is still in the process of re-capturing private oil and gas companies lost
during the spate of privatizations that took place in the 1990s. Similarly, with respect to
biotechnology, the new Constitution uses strong language with respect to the rights of
indigenous peoples to access and manage genetic resources: for example, Article 100
holds that the State has an obligation to maintain an intellectual property registry to
safeguard the intangible rights of indigenous peoples;
246
and article 56 states that private
property is permitted so long as it does not harm the collective interest.
247
Furthermore,
in 2007, the Bolivian government also passed Supreme Decree No. 29004, which requires
prior consent in a product patent application or a pharmaceutical invention process.
248

245
In May 2008, President Morales nationalized the telecommunications sector, followed by the gas
transport industry in J une 2008. Article 359 of the new Bolivian Constitution stipulates that all
hydrocarbon deposits belong to the state of Bolivia. see The Office of the United States Trade
Representative. USTR Bolivia Report 2010 U.S. Trade
<
In
addition, in the case of a conflict with a foreign company, the Bolivian state must side
with local communities. Granted, the full repercussions of the new Bolivian constitution
have not been fully digested by industry and policymakers alike; however, such vague
www.ustr.gov/sites/default/files/uploads/.../2010_NTE_Bolivia_final.pdf>[USTR]
246
GRAIN. The Struggle Against IPR in the Andes <http://www.stwr.org/latin-america-caribbean/the-
struggle-against-ipr-in-the-andes.html>[GRAIN]
247
Ibid GRAIN
248
WIPO Collection of Laws for Electronic Access (CLEA). Bolivian IP laws on genetic resources and
patents. Available online at http://www.wipo.int/clea/en/details.jsp?id=6776
65



policy direction does not encourage the level of private biotechnology investment that
Bolivia might like to see. For example, in 2007, Bolivia withdrew from the World Banks
International Centre for Settlement on Investment Disputes (ICSID).
249
Also, according
to the Office of the United States Trade Representative (USTR), recent Bolivian
government policies, stemming from the enactment of a new constitution in early 2009,
have created barriers to private foreign investment. For example, there is a limit placed
on the ability of private companies to access international arbitration mechanisms if there
is a conflict with the Bolivian government.
250
The Bolivian government has given the strongest signs of a deep commitment
to the needs, views and demands of local communities, but the fact that the
concept of intellectual property is included in the Constitution creates
unavoidable contradictions and potential conflicts. the Constitution
recognizes the concept of intellectual property rights, which are incompatible
with its underlying principles; their contradictory inclusion is bound to create
tensions.
As such,
251

(Emphasis added)
By comparison, Brazils innovation system was not based around state control
over resources, but rather for the state to assume a larger and more defined role in
management and use of resources. Ministers in the highest levels of government,
including President da Silva, explicitly called on the public sector to be the birthplace of
new research and, subsequently, for the private sector to enter the market and
commercialize this research. Indeed, many experts have commented that incentive-
based innovation systems can promote agricultural biotechnology innovation where
the government merely guides the direction of private sector research through creating

249
Ibid USTR supra note 244
250
Ibid USTR
251
see GRAIN supra note 245
66



appropriate incentives (i.e. tax breaks or competitive funding research grants)
252
. In this
model, the government carries out less research and technology transfer on its own, but
creates an open-learning, flexible and decentralized environment in which the private
sector can assume a bigger responsibility.
253
There are many similarities with respect to Bolivias and Brazils respective choice
of regulatory and intellectual property regimes that are responsible for managing their
genetic wealth and agricultural biotechnologies. And, if we follow the development
trajectory of Brazils intellectual property rights legislation, we can observe that it is only
recently within the last 10-15 years where Brazil has made its biggest strides in
enacting domestic legislation and ratifying international agreements that provide strong IP
protection for genetic resources. In fact, many commentators argue that making such
international commitments is actually retarding the growth of Brazils biotechnology
industries. For example, Brazil and Bolivia have both signed the Trade Related Aspects
of Intellectual Property Rights (TRIPS) Agreement. As is the case with many mid-level
developing economies, Brazil is heavily influenced by the regulatory pressures of global
IPR harmonization, most notably through international treaties; however, where there was
room for flexibility, the Brazilian government developed a policy environment that
favoured its specific development agenda.

254

252
see Hartwich supra note 10 at 18
For example, Brazil and Bolivia have both
used the flexibility provided under Article 27.3(b) to exclude plants, animals and
253
Ibid Hartwich at 10. see also Organization for Economic Co-operation and Development (OECD).
Governance of Innovation Systems. Vol. Vol. 1. Secretary-General of the OECD, 2005. [OECD
Governance]
254
For example, using the flexibility found in TRIPS, Brazilian law holds that no patents may be granted
over living organisms.
67



essentially biological processes from patentability.
255
At the 2001 Doha round of trade
negotiations, Brazil and Bolivia were part of a group of countries (including Thailand,
Colombia, Peru, Dominican Republic, Ecuador, among others) that sought to introduce
further amendments to the TRIPS agreement that would ensure that patent applications
must disclose the country of origin of genetic resources used in inventions and also that
the users of genetically-derived technologies produce evidence of prior informed
consent and evidence of fairly distributing access and benefits.
256
Moreover, in 1999,
both countries decided to protect plant life through their own sui-generis patent system in
accordance with the principles of the International Union for the Protection of New
Varieties of Plants (UPOV) Act of 1978.
257
In addition to a similar approach to managing
IP rights, Brazil and Bolivia have also taken similar steps to manage their biodiversity
and genetic resources: both countries have signed the Convention on Biological
Diversity
258
(CBD) and both are also members of REDBIO/FAO, a technical cooperation
network of 738 laboratories in 32 countries in the Latin American region.
259

255
Rocha-Lackiz, Alma. Biopiracy: Is the Patent system a solution? Dynamics of Institutions and
Market in Europe (SPRU Science and Technology Policy Research. )<
In fact, both
Brazil and Bolivia are part of a group of mega-diverse developing countries that
demanded the introduction of an International Regime on Access to Biodiversity and
http://www.dime-
eu.org/files/active/0/Rocha-Lackiz.pdf>[Rocha-Lackiz]
256
World Trade Organization. Background and the current situation on TRIPS Article 27.3(b). Accessed
online at http://www.wto.org/english/tratop_e/trips_e/art27_3b_background_e.htm
257
It is significant that Brazil and Bolivia have signed the UPOV 1978 and not the UPOV 1991. The
UPOV 1978 Act is regarded as being more favourable to the rights of small farmers in developing
countries. It was revised twice since European countries signed on in 1961 first in 1978, and the second
time in 1991. Each revision was aimed at strengthening the rights of commercial breeders. see Cullet,
Philippe. "Farmers Rights in Peril." Frontline 17.7 (2000): 71. . see also "Membership in the UPOV." 2010.
<http://www.upov.int/en/about/members/>.
258
Bolivia ratified the Convention October 3 1994 and ratified the Protocol September 11 2003. see
Conventional on Biological Diversity Country Profile (Bolivia). Accessed online at
http://www.cbd.int/countries/profile.shtml?country=bo
259
REDBIO/FAO website. <http://www.redbio.org/html/institucion_menu.htm> [REDBIO/FAO]
68



Benefit sharing, which would create binding guidelines to protect genetic resources and
indigenous knowledge under the CBD.
260
Interestingly, however, there is one main international agreement that Brazil has
signed and Bolivia has not: the International Treaty for Plant and Genetic Resources for
Food and Agriculture (ITPGRFA). Brazil ratified the agreement in May 2006.

261
Bolivia
has still not joined the new international research system and this shows Bolivias lack of
strategic and formulaic vision for how its biotechnology industry will grow over the long-
term. The ITPGRFA represents a real attempt by the FAO at creating the type of
international collaborative framework through which new technologies can be developed.
In fact, the motivations behind the ITPGRFA the recognition that Access Benefit
Sharing (ABS) in agricultural biodiversity must be treated differently from how it is
traditionally managed through plant and biodiversity laws
262
- are the same motivations
that have caused Bolivia to ratify international agreements such as the CBD and enact
domestic legislation protecting its genetic resources. Bolivia is still clinging to the
CGIAR research system, considered by most expert commentators to be outdated and
underfunded. Consider that basic and strategic research in SIBTA is supposedly carried
out at the international research institutes, such as CGIARs,
263
and agricultural research
depends on help from international institutions to keep its laboratories fully staffed and
running.
264

260
Mega diverse countries possess 60-70% of the worlds biodiversity, and specifically include Brazil,
India, Costa Rica, Bolivia, China, the Democratic Republic of Congo, Colombia, Ecuador, South Africa,
Indonesia, Kenya, Madagascar, Papua New Guinea, Venezuela and the Philippines
This reliance on the CGIAR system constrains product development because
261
Food and Agriculture Organization (Legal Office). "International Treaty on Plant and Genetic Resources
for Food and Agriculture." FAO. November 2001 2010. <http://www.fao.org/Legal/treaties/033s-e.htm>.
262
see Halewood supra note 76
263
see Hartwich supra note 10 at 44
264
see Avila supra note 113 at 4
69



of the CGIARs limited resources for scientific biotech innovation. More importantly, it
demonstrates a lack of strategic, long-term guidance from the Bolivian state.
The following table summarizes the comparison between the two countries:
Innovation Factors Brazil Bolivia
Research progresses
beyond the basic stage
Yes No
Explicit emphasis on
human capital and
research capacity
development
Yes No
Strategic Policy Guidance Yes Yes although focused on
state control of resources;
Ministry of Agriculture
must play a bigger role in
setting research priorities
for agricultural research
National Biotechnology
Policy
Yes No
Membership in
International Research
Network

--

--
REDBIO/FAO Yes Yes
ITPGRFA Yes No
Intellectual Property
Regimes

--

--
Domestic Patent Legislation Yes yes
TRIPS Yes Yes
UPOV Yes Yes
CBD Yes Yes




70

CONCLUSION

The comparative analysis presented in this paper demonstrates that novel IP
management techniques, such as the use of open-source licenses or patent-pools
arrangements, have less of an effect in creating a stable technology transfer environment
than is currently being proposed by some academics. Neither was the goal of this paper
to discuss what form such policies might take nor to propose new forms for IP licensing
strategies such as humanitarian-use exemptions or compulsory licensing. The analysis
might be criticized for being a bit simple and unsystematic; however, the goal of this
paper was always quite modest - to draw attention to the larger forces at work other than
IP instruments and the forms of intellectual property regimes. Both academics and
professionals working in the field of agricultural technology transfer, including Anatole
Krattiger and Susan Finston specifically, suggest that the three core elements of a
successful technology transfer environment are directly related to the external policy
environment: a durable government commitment to science, education, research and
related infrastructure; broad rule of law protections, including strong IP protections; and,
a reliance on market forces as the engine for technology transfer.
265
issues are not within the control of the research institutions. Rather, they are
within the control of national ministries, and, at least, indirectly, of the
strategies of the International Financial Institutions in their assistance to and
policy conditionality for the poorer nations, within which subsistence farmers
are especially likely to be found
It is important to
remember that these
266



265
see Krattiger supra note 10 at 15; see also Finston supra note 1
266
see Barton supra note 2 at 17
71



The conclusions drawn from this analysis reflect both contemporary literature and real-
world observations.
Brazils successful implementation of the National Biotechnology Policy is an
example of how national governments can create the right economic, technological and
legal policy environment for the widespread adoption of agricultural biotechnology. The
Brazilian innovation system demonstrates that a strategic, horizontally coordinated
innovation policy, implemented through explicit guidance from the state, can ensure that
SME biotech firms, universities and research centers maximize the generation of pro-poor
research. The efficacy of information-development-commercialization channels is a
function of creating a culture of scientific innovation through strategic policy direction
and not of licensing method; and, it is the responsibility of executive-level authorities to
create a cultural framework within which use of the technology is acceptable.
267
This
strategic policy focusing is a function of new institutional frameworks tailored to ensure
good accessibility for small farms and to provide adequate incentives for the private
sector to invest in local innovation and technology transfer.
268
As such, the paradigm
shift that Bolivia needs to encourage the development of agricultural biotechnology
research must occur at the policy level and involve coordination among research
institutions, public universities and specific government funded agricultural projects.
269

267
see Barton supra note 2 at 7

Novel licensing strategies can form a part of the policy environment; but their
contribution to the efficiency of technology transfer will only be effective if collaborative
information-development-commercialization channels have been established:
268
see Karapinar supra note 109 at 31
269
Hartwich supra note 10 at 15
72



[e]enhancing accessibility of and increasingly incentivizing the production of
pro-poor biotechnologies through sound IP systems is certainly not enough to
result in effective use of pro-poor biotechnologies in developing countries.
However, PPPs together with a suitably adapted IPR system setting legal
standards for contractual negotiations; creatively using public domain
possibilities; and a proper contractual balance might be critical in making
agricultural biotechnology pro-poor.
270


At the early stages of development, it is important that strong IP legislation simply
exists; meaning, that the state enacts the appropriate patent, confidentiality and trade
secret laws that welcome private sector investment. Once sufficient technical and
capacity has been developed and markets have matured, the IP regime can be tailored to
specific national interests such as the protection indigenous rights and genetic resources.
Prioritizing the role of IP rights management without the requisite degree of national
strategic vision and capacity development policies is putting the cart before the horse.




270
see Karapinar supra 109 note at 31


73

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